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UNIVERSITY 

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THE 


DOCTRINE  OF  EQUITY. 


COMMENTARY  0^  THE  LAW 


AS    ADMINISTERED    BY 


€\t  Court  of  Clanterg. 

BY 

JOHN  ADAMS,  Jun.,  Esq., 

BARRISTER    AT    LAW. 


CONTAINING    THE    NOTES   TO   THE    PREVIOUS   EDITIONS   OF 

J.  R.  LUDLOW,  J.  M.  COLLINS,  HENRY  WHARTON  AND 
GEO.  TUCKER  BISPHAM. 


ADDITIONAL  NOTES  AND   REFERENCES   TO  RECENT  ENGLISH  AND 
AMERICAN   DECISIONS, 

BY 

GEORGE  SHARSWOOD,  Jr. 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON  &  CO., 

LAW   BOOKSELLERS,    PUBLISHERS   AND    IMPORTERS, 
535  CHESTNUT  STREET. 


T 
\^13 


Entered,  according  to  Act  of  Congress,  in  the  year  1S73, 

BY    T.    &    J.    W.    JOHNSON    A    CO., 

In  the  OflSce  of  the  Librarian  of  Congress,  at  Washington. 


Entered,  according  to  Act  of  Congress,  in  the  year  1868, 

BY    T.    i    J.    W.    JOHNSON    &    CO., 

In  the  Clerk's  OflSce  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


HENRT  B.  ASBHEAD,  PRINTIR, 

Nos.  1102  and  IlOt  Sansom  Street,  Philadelphia. 


^5'1'!>*^      iAthdrawn 


PREFACE 

TO  THE  SIXTH  AMERICAN  EDITION. 


*3 


With  the  concurrence  and  approval  of  the  former  ed- 
itors, their  notes  and  references  have  been  combined,  and 
those  of  the  present  editor  added  to  them.  Their  arrange- 
ment of  notes  has  been  followed,  and  the  present  work, 
has,  as  far  as  possible,  been  confined  to  references  to  the 
recent  American  and  English  cases. 

George  Sharswood,  Jr. 

Philadklphia,  January,  1873. 


PREFACE 

TO  THE  THIRD  AMERICAN  EDITION. 


The  task  of  the  present  editor  has  been,  in  the  main, 
that  of  supplying  notes  and  references  which  should 
embody  the  more  important  English  and  American  de- 
cisions, upon  the  topics  of  which  this  work  treats,  since 
the  publication  of  the  last  edition.  He  has,  in  some  in- 
stances, however,  enlarged  and  added  to  his  predecessors' 
notes,  though  leaving  them  in  general  to  stand  as  they 
were  written. 

The  editor  would  willingly  have  made  the  annotations 
to  the  last  division  of  this  work,  on  Pleading  and  Prac- 
tice, more  systematic  and  complete  than  they  are  ;  but  he 
found,  that  in  view  of  the  great  changes  which  time  and 
altered  circumstances  have  introduced  into  the  course  of 
Chancery  procedure,  both  in  England  and  the  United 
States,  it  would  not  have  been  possible  to  do  so  without 
adding  greatly  to  the  bulk  of  the  book,  with  no  corre- 
sponding advantage  to  the  reader.  In  this  country,  in- 
deed, between  those  States  in  which  the  distinct  equitable 
jurisdiction  is  abolished,  and  those  in  which  the  frame- 
work of  the  Court  of  Chancery  still  stands,  there  is  to  be 
found  a  wide  range  of  diversities,  chiefly  of  local  origin, 
and  irreducible  to  any  common  system ;  while  in  none,  it 
is  believed,  is  the  older  practice,  as  set  forth  in  the  text 
of  this  work,  in  all  respects  followed.  Every  State  looks 
in  such  matters  chiefly  to  its  own  statutory  and  judicial 
regulations  ;  and  these  it  would  not  have  been  appropriate 


PREFACE.  T 

or  convenient  to  embody  in  the  notes  to  so  elementary  a 
work,  as  the  present. 

In  England,  the  alterations  which  the  last  few  years 
have  produced,  are  of  the  most  remarkable  character ; 
so  that,  indeed,  the  whole  structure  of  Chancery  must 
be  considered  as  remodelled.  In  the  first  place,  the 
pleadings  have  been  simplified  to  an  extreme  degree. 
An  informal  claim  is  substituted  in  many  cases  for  a 
bill;  and  disputed  questions  under  wills,  deeds,  con- 
tracts, and  the  like,  may  be  submitted  directly  to  the 
Court  in  the  form  of  a  case  stated.  The  bill,  when  used, 
is  only  a  concise  printed  narrative  of  the  material  parts 
of  the  complainant's  case,  with  the  prayer  for  the  appro- 
priate relief  at  the  end ;  for  the  interrogatories  are  now 
filed  separately.  The  answer  is  substituted  in  every 
respect  for  the  old  modes  of  defence ;  and  is  a  concise 
statement  of  the  respondent's  case,  whether  in  bar  or 
avoidance :  and  he  is,  in  his  turn,  authorized,  if  he  choose, 
to  exhibit  interrogatories  to  the  complainant,  and  to 
compel  the  production  of  documents,  without  recourse  to 
a  cross-bill.  Exceptions  for  impertinence  on  either  side 
are  done  away  with,  the  only  penalty  thereon  being  the 
costs,  if  any  be  occasioned.  Objections  for  the  non- 
joinder or  misjoinder  of  parties,  where  not  abolished 
altogether,  are  made  as  Kttle  productive  of  injury  and 
delay  as  possible.  Bills  of  revivor  and  supplement  no 
longer  exist;  their  place  being  supplied  by  a  greater 
latitude  of  amendment,  and  by  the  power  to  make  cor- 
responding orders  in  the  cause.  The  clumsy  system  of 
the  examination  of  witnesses  on  interrogatories  is  abol- 
ished; and  testimony  is  now  taken  orally,  before  the 
examiner,  in  the  presence  of  the  parties,  as  in  suits  at 
law,  while  objections  to  the  competency  of  witnesses  are 


VI  PREFACE, 

no  longer  allowed.  That  fons  mahrum,  the  office  of 
Master,  is  done  away,  and  its  duties  are  transferred  to 
the  Court  at  chambers,  assisted  by  clerks.  The  Court 
now  settles  all  questions  of  law,  and  even  a  disputed  legal 
title,  itself,  without  directing  an  actien  or  a  case  to  a 
Court  of  law,  A  new  tribunal,  called  the  Court  of  Ap- 
peal, with  co-ordinate  appellate  jurisdiction  to  the  Chan- 
cellor, has  been  created.  And  finally,  very  judicious 
means  for  the  reduction  of  the  expenses  of  Chancery 
proceedings  have  been  adopted,  the  principal  one  of  which 
is  the  substitution  of  compensation  by  salaries  to  the 
officers  of  the  Court,  in  lieu  of  the  old  fee  system.  Other 
ameliorations  and  improvements  are  in  progress ;  and  be- 
fore long  the  English  Chancery,  once  the  stronghold  of 
abuses  and  delay,  will  be  made  one  of  the  simplest,  most 
effective,  and  cheapest  tribunals  in  the  world.  Even 
now,  the  radical,  though  well-regulated,  reforms  in  this 
and  other  branches  of  the  law,  in  England,  patiently 
effected  in  the  face  of  a  thousand  obstacles,  present  a 
marked  contrast  to  the  slow  progress  made  in  this  direc- 
tion by  most  of  the  United  States.  It  is  to  be  hoped, 
indeed,  that  the  subject  will  soon  be  taken  up  by  the 
profession  throughout  the  whole  of  our  country,  with 
energy  and  earnestness,  so  that  we  may  no  longer  deserve 
the  reproach  of  being  left  behind  in  the  race  of  real  im- 
provement by  one  of  the  most  conservative  of  nations. 

The  references  throughout  the  book  have  been  care- 
fully corrected,  and  an  alphabetical  table  of  all  the  Re- 
ports and  Text-books  cited  in  them,  has  been  prefixed, 
which  will  furnish  an  explanation  of  the  abbreviations 
employed. 

Henry  Wharton. 

Philadelphia,  April,  1855. 


ADVERTISEMENT. 


In  preparing  this  treatise  for  the  press,  the  chief  design 
of  its  lamented  author  was  to  present  to  the  profession  a 
comprehensive  and  condensed  view  of  the  general  Princi- 
ples of  the  Doctrine  of  Equity,  as  administered  in  the 
Court  of  Chancery,  and  an  outline  of  the  proceedings  hy 
which  those  principles  are  enforced.  It  comprises  the 
substance,  with  additions,  of  three  series  of  Lectures,  de- 
livered before  the  Incorporated  Law  Society,  in  the  years 
1842—5.  The  completion  of  the  work  in  its  present  form 
occupied  from  that  period  a  considerable  portion  of  the 
time  and  labor  of  the  author;  and,  with  the  exception  of 
the  last  four  chapters  of  the  fourth  book,  the  treatise  had 
received  his  final  corrections,  and  arrangements  were 
making  for  its  immediate  publication,  when  he  was  so  sud- 
denly called  away  in  the  autumn  of  last  year. 

The  thanks  of  the  author's  friends  are  due  to  Mr.  James 
Willis,  of  the  Equity  Bar,  for  his  valuable  assistance  in 
the  coiTection  of  the  unfinished  chapters  of  the  treatise, 
and  in  the  general  revision  of  the  work  during  its  progress 
through  the  press. 

J.  A. 

Michaelmas  Term, 1849. 


CONTENTS. 


THE  PAGES  REFERRED  TO  ARE  THOSE  BETWKKS  BRACKETS  [  ]. 

BOOK  I. 

OP    THE    JURISDICTION    OP    COURTS    OP    EQUITY    AS    REGARDS    THEIR 
POWER   OP   ENPORCING   DISCOVERY. 

CHAPTER  I. 

Of  Discovery        .  .  .  .  .  .  .1 

CHAPTER  II. 

Of  Commissions  to  examine  Witnesses  abroad  .  .  .  23 

Of  Perpetuation  of  Testimony       .  .  .  .  .24 

Of  Examinations  de  bene  esse  .....  25 

'    BOOK  II. 

OP  THE  JURISDICTION  OP  THE  COURTS  OP  EQUITY   IN  CASES  IN  WHICH 
THE  COURTS  OF  ORDINARY  JURISDICTION  CANNOT  ENPORCE  A  RIGHT. 

CHAPTER  I. 
Of  Trusts,  both  Ordinary  and  Charitable  .  .  .26 

CHAPTER  II. 

Of  Specific  Performance        .....  77 

Of  Election         .......  92 

Of  Imperfect  Consideration  .....  97 

Of  Discharge  by  Matter  in  pais  of  Contracts  under  Seal ,            .  106 


CONTENTS. 


CHAPTER  III. 


Of  Mortgages. 
Perfect 
Imperfect 


Of  Conversion 
Of  Priorities 
Of  Tacking  . 


CHAPTER  IV. 


CHAPTER  V. 

Of  Re-execution  .... 

Of  Correction 

Of  Rescission  and  Cancellation     . 

CHAPTER  VI. 

Of  Injunction  against  Proceedings  at  Law 

Of  Bills  of  Peace 

Of  Bills  of  Interpleader 

Of  Injunction  against  Tort 


110 
122 


135 
145 
163 


167 
169 
174 


194 
199 
202 

207 


BOOK  III. 

OF  THE  JURISDICTION  OP  THE  COURTS  OF  EQUITY  IN  CASES  IN  WHICH 
THE  COURTS  OF  ORDINARY  JURISDICTION  CANNOT  ADMINISTER  A 
RIGHT. 


CHAPTER  I. 


Of  Account 


220 


CHAPTER  II. 


Of  Partition 

Of  Assignment  of  Dower 


229 
233 


CONTENTS.  XI 

Of  Subtraction  of  Tithes.             .             .  .             .             .235 

Of  Ascertainment  of  Boundary         ....  237 

CHAPTER  III. 

Of  Partnership    .             .             .             .  .            .             .239 

CHAPTER  IV. 

Of  Administration  of  Testamentary  Assets    .  .             .            249 

CHAPTER  V. 

Of  Contribution  and  Exoneration             .  .             ,                  267 

Of  Marshalling          .             .             .             .  .             .            271 

CHAPTER  VI. 

Of  Infancy          ...  ,             ,             .     278 

Of  Idiocy  and  Lunacy           .             ,             .  ,       ,      .            290 


BOOK  IV. 

OP  THE  FORMS  OF  PLEADING  AND   PROCEDURE   BY  WHICH   THE   JURIS- 
DICTION OF  THE  COURTS  OP   EQUITY  IS  EXERCISED. 

CHAPTER  I. 
Of  the  Bill 299 

CHAPTER  II. 
Of  Parties 312 

CHAPTER  III. 
Of  Process  and  Appearance         .....    32-t 


Xn  CONTENTS. 

CHAPTER  IV. 
Of  the  Defence         .....".  331 

CHAPTER  V. 
Of  Interlocutory  Orders  ......     348 

CHAPTER  VI. 
Of  Eyideneex  ......  363 

CHAPTER  VII. 
Of  the  Hearing  and  Decree         .....     374 

CHAPTER  VIII. 
Of  the  Rehearing  and  Appeal  ....  396 

CHAPTER  IX. 

Of  the  Cross-Bill 402 

Of  the  Bill  of  ReviTor  .....  404 

Of  the  Bill  of  Supplement  .  .  .  .  .408 

Of  the  Bill  to  Execute  or  Impeach  a  Decree  .  .  415 


TABLE  OF  TEXT-BOOKS  AND  REPORTS. 

CITED  IN  THIS  VOLUME, 


Abbott's  R.  (U.  S.  G.  C). 

Adams  on  Ejectment. 

Adolphus  and  Ellis  R.  (England). 

Alabama  Reports. 

Allen's  R.  (Massachusetts). 

Ambler's  R.  (England). 

American  Law  Journal,  New  Series. 

American  Law  Register. 

American  Law  Register,  (New  Series) . 

American  Leading  Cases  (Hare  and 

Wallace). 
Arkansas  Reports. 
Ashmead's  R.  (Pennsylvania). 
Atkyn's  R.  (England). 

Bail  Court  Cases  (England). 

Bailey's  Equity  R.  (South  Carolina). 

Baldwin's  R.  (Circuit  Court,  U.  S.). 

Barbour's  Chancery  R.  (New  York). 

Barbour's  Supreme  Court  R.  (New 
York). 

Barnewall  and  Alderson's  R.  (Eng- 
land). 

Barnewall  and  Cresswell  R.  (Eng- 
land). 

Barr's  R.  (Pennsylvania). 

Bay's  R.  (South  Carolina). 

Beames  on  Costs  in  Equity. 

Beasley's  R.  (New  Jersey). 

Beatty's  R.  (Ireland). 

Beavan's  R.  (England). 

Bennett's  R.  (Missouri). 

Bibb's  R.  (Kentucky). 

Bingham's  New  Cases  (England). 

Bingham's  R.  (England). 

Binney's  R.  (Pennsylvania). 

Blackstone's  (Wm.)  R.  (England). 

Bland's  Chancery  R.  (Maryland). 

Black's  R.  (Sup.  Ct.  U.  S.). 

Blackford's  R.  (Indiana). 

Blatchford's  R.  (Circuit  Ct.  U.  S.). 

Bligh's  R.  (England). 

Bligh's  R.  New  Series  (England). 

B.  Monroe's  R.  (Kentucky). 

Bosanquet  and  Puller's  R.  (England). 


Bradford's  Surrogate  R.  (New  York). 

Brewster's  R.  (Pa.). 

Brightly's  Nisi  Prius  R.  (Pennsyl- 
vania). 

Brockenbrough's  R.  (Circuit  Ct.  U.  S.). 

Browne's  Chancery  Cases  (England). 

Browne's  Parliamentary  Cases  by 
Tomlins  (England). 

Burrill  on  Assignments  for  the  Benefit 
of  Creditors. 

Burrough's  R.  (England). 

Burr's  Trial  (U.  S.). 

Busbee's  Eq.  R.  (North  Carolina). 

Caines's  Cases  in  Error  (New  York). 

Calendar  of  Chancery  Proceedings. 

California  Reports. 

Call's  R.  (Virginia). 

Cameron  and  Norwood's  R.  (North 
Carolina). 

Carolina  Law  Repository  (North  Caro- 
lina). 

Carter's  R.  (Indiana). 

Chambers  on  Infancy. 

Chancery's  Cases  (England). 

Chandler's  R.  (Wisconsin). 

Charlton  (R.  M.)  R.  (Georgia). 

Cheves's  R.  (South  Carolina). 

Clark  and  Finnelly's  R.  (England). 

Clarke's  R.  (New  York). 

Coke  upon  Littleton. 

Coke's  Institutes. 

Collyer's  R.  (England). 

Common  Bench  R.  (England). 

Comstock's  R.  (New  York). 

Connecticut  Reports. 

Conner  and  Lawson's  R.  (Ireland). 

Cooke's  R.  (Tennessee). 

Cooper's  Chancery  Cases  (England). 

Cooper's  R.  (England). 

Cooper's  (C.  P.)  R.  (England). 

Cowen's  R.  (New  York). 

Cowper's  R.  (England) 

Cox's  Chancery  Cases  (England). 

Cox's  Chancery  Rep.  (England). 


XIV 


TEXT-BOOKS    AND    REPORTS, 


Craig  and  Phillips'  R.  (England). 
Oranch's  R.  (Sup.  Ct.  U.  S.). 
Oroke's     R.     (Elizabeth,     James     I., 

Charles  I.). 
Curtis'  R.  (Circuit  Ct.  U.  S.). 
Cushing's  R.  (Massachusetts).  . 
Cushman's  R.  (Mississippi) 

Dallas's  R.  (Pennsylvania). 

Dana's  R.  (Kentucky). 

Daniell's  Chancery  Practice. 

Day's  R.  (Connecticut). 

De  Gex  and  Jones'  R.  (England). 

De  Gex,  Fisher  and  Jones'  R.  (Eng- 
land). 

De  Gex,  Jones  and  Smith's  R.  (Eng- 
land). 

De  Gex  and  Smale's  R.  (England). 

De  Gex,  Macnaghten  and  Gordon's  R. 
(England). 

Dessaussure's  R.  (South  Carolina). 

Devereux's  Eq.  R.  (North  Carolina). 

Devereux  and  Battle's  Equity  R. 
(North  Carolina). 

Dickin's  R.  (England). 

Dillon's  R.  (C.  C.  of  U.  S.) 

Douglass's  R.  (Michigan). 

Dow's  R.  (England). 

Drewry's  R.  (England). 

Drewry  and  Smale's  R.  (England). 

Drury's  R.  (Ireland). 

Drury  and  Warren's  R.  (Ireland). 

Dudley's  R.  (Georgia). 

Duer's  R.  (New  York). 

East's  R.  (England). 

Eden's  R.  (England). 

Edwards'  Chancery  R.  (New  York). 

Edmonds'  Select  Cases  (New  York). 

Elmer's  New  Jersey  Digest. 

English's  R.  (Arkansas). 

English  Common  Law  Reports. 

Equity  Draftsman. 

Equity  R.  (England). 

Equity  Cases  Abridged  (England). 

Exchequer  R.  (England). 

Fairfield's  R.- (Maine). 

Finch's  R.  (England). 

Florida  Reports. 

Foster's  R.  (New  Hampshire). 

Freeman's  Chancery  R.  (Mississippi). 

Freeman's  R.  (England). 

Gallison's  R.  (Circuit  Ct.  U.  S.). 
Georgia  Decisions. 
Georgia  Reports. 
GiflFard's  R.  (England). 
Gilbert  on  Uses,  by  Sugden. 
QUI  and  Johnson's  R.  (Maryland). 


Gill's  R.  (Maryland). 

Gilman's  R.  (Illinois). 

Glyn  and  Jamison's  R.  (England). 

Grattan's  R.  (Virginia). 

Gray's  R.  (Massachusetts). 

Green's  Chancery  R.  (New  Jersey). 

Greene's  R.  (Iowa). 

Greenleaf  s  Cruise's  Digest. 

Greenleaf  on  Evidence. 

Greenleafs  R.  (Maine). 

Hale's  Jurisdiction  &f  the  House   of 

Lords. 
Hale's  Pleas  of  the  Crown. 
Hall  and  Twell's  R.  (England). 
Halstead's  Chancery  R.  (New  Jersey). 
Hammond's  R.  (Ohio). 
Hardin's  R.  (Kentucky). 
Hare's  R.  (England). 
Hargrare's  Coke  upon  Littleton. 
Harper's  Equity  R.  (South  Carolina). 
Harper's  Law  R.  (South  Carolina). 
Harrington's  Chancery  R.  (Michigan). 
Harrington's  R.  (Delaware). 
Harris  and  Gill's  R.  (Maryland). 
Harris  and  Johnson's  R.  (Maryland). 
Harris  and  M'Henry's  R.  (Maryland). 
Harrison's  R.  (New  Jersey). 
Hawk's  R.  (North  Carolina). 
Haywood's  R.  (North  Carolina). 
Head's  R.  (Tennessee). 
Hemming  and  Miller's  R.  (England). 
Hempstead's  R.  (Circuit  Court  U.  S.). 
Henning  and  Munford  (Virginia). 
Heyward's  R.  (Tennessee). 
Hill's  Equitv  R.  (South  Carolina). 
Hill's  R.  (New  York). 
Hill  and  Denio's  R.  (New  York). 
Hill's  Law  R.  (South  Carolina). 
Hill  on  Trustees. 
Hoffman's  Chancery  Practice. 
Hoffman's  Chancery  R.  (New  York). 
Hopkins'  R.  (New  York). 
House  of  Lords'  Cases  (England). 
Howard's  R.  (Mississippi). 
Howard's  R.  (Supreme  Court  U.  S.). 
Humphreys'  R.  (Tennessee). 

Illinois  Reports. 

Indiana  Reports. 

Institutes,  see  Coke. 

Iowa  Reports. 

Irish  Chancery  R. 

Iredell's  Equity  R.  (North  Carolina). 

Irish  Equity  Reports. 

Irish  Law  and  Equity  R.  (New  Series). 

Jacob's  R.  (England). 

Jacob  and  Walker's  R.  (England). 

Jarman's  Bythewood's  Conveyancing. 


TEXT-BOOKS    AND    REPORTS. 


XV 


Jarman  on  Wills. 
Jarman's  Powell  on  Devises. 
Johnson's  Reports  (England). 
Johnson  andHemming'sR.  (England). 
Johnson's  Chancery  R.  (New  York). 
Jones's  Equity  R.  (North  Carolina). 
Jones  and  Latouche's  R.  (Ireland). 
Jurist  (England). 

Kansas  Reports. 

Kay  and  Johnson's  R.  (England). 

Keen's  R.  (England). 

Kelly's  R.  (Georgia). 

Kent's  Commentaries  on  American 
Law. 

Kernan's  R.  (New  York). 

Knapp's  Privy  Council  Cases  (Eng- 
land). 

Lansing's  R.  (N.  Y.). 

Law  Journal  R.  New  Series,  Chancery 
(England). 

Law  Review  (England). 

Law  Reports,  Chancery  Appeals  (Eng- 
land). 

Law  Reports,  Common  Pleas  (Eng- 
land). 

Law  Reports,  Equity  (England). 

Leading  Cases  in  Equity,  White  and 
Tudor,  American  ed.  by  Hare  and 
Wallace. 

Leigh's  R.  (Virginia). 

Lewin  on  Trusts. 

Littell's  R.  (Kentucky). 

Littell's  Select  Cases,  or  6  Litt.  (Ken- 
tucky). 

Lloyd  and  Goold's  R.  (Ireland). 

Louisiana  Annual  R. 

McCarter's  Reports  (New  Jersey). 

McCord's  Chancery  R.  (South  Caro- 
lina). 

McCord's  LawR.  (South  Carolina). 

McLean's  R.  (Circuit  Court  U.  S.). 

McMulIen's  Chancery  R.  (South  Caro- 
lina). 

Macnaghten  and  Gordon's  R.  (Eng- 
land). 

Macqueen's  Practice. 

Macqueen's  Scottish  Appeal  Cases 
(England). 

Maddock  and  Geldart  (England). 

Maddock's  Chancery  Practice. 

Haddock's  R.  (England). 

Maine  Reports. 

Manning's  R.  (Michigan). 

Manning  and  Granger's  R.  (England). 

Marshall's  (A.  K.)  R.  (Kentucky). 

Marshall's  (J.  J.)  R.  (Kentucky). 

Martin  and  Yerger's  R.  (Tennessee). 


Maryland  Chancery  Decisions. 

Maryland  Reports. 

Mason's  R.  (Circuit  Court  U.  S.). 

Maule  and  Selwyn's  R.  (England). 

Meeson  and  Welsby's  R.  (England). 

Meigs'  R.  (Tennessee). 

Merlvale's  R.  (England). 

Metcalf  s  R.  (Massachusetts). 

Metcalfe  R.  (Kentucky). 

Michigan  Reports. 

Minnesota  Reports. 

Mississippi  Reports. 

Missouri  Reports. 

Mitford's  Chancery  Pleadings. 

Molloy's  R.  (Ireland). 

Monroe's  R.  (Kentucky). 

Monroe's  (Ben.)  R.  (Kentucky). 

Montague  and  Ayrton's  Bankruptcy 
R.  (England). 

Montague,  Deacon  and  De  Gex^s  R. 
(England). 

Moore's  Privy  Council  Cases  (Eng- 
land). 

Mumford's  R.  (Virginia). 

Murphey's  R.  (North  Carolina). 

Mylne  and  Craig's  R.  (England). 

Mylne  and  Keene's  R.  (England). 

Nevada  State  Reports.    ~ 

New  Chancery  Cases,  see  Young  and 

CoUyer. 
New  Hampshire  Reports. 
New  York  Reports. 
North  Carolina  Term  Reports, 

Ohio  Reports. 

Ohio  State  Reports,  New  Series. 

Paige's  R.  (New  York). 

Paine's  R.  (Circuit  Court  U.  S.). 

Parsons  on  Partnership. 

Parsons'  Equity  Gases  (Pennsyl- 
vania). 

Patton  and  Heath's  R.  (Virginia). 

Peck's  R.  (Tennessee). 

Peere  Williams'  R.  (England). 

Pennsylvania  Law  Journal. 

Pennsylvania  Reports. 

Pennsylvania  State  Reports. 

Penrose  and  Watts'  R.  (Pennsylvania.) 

Peters'  Circuit  Court  R.  (U.  S.). 

Peters'  R.  (Supreme  Court  U.  S.). 

Phillipps  on  Evidence 

Phillips'  R.  (England). 

Pickering's  R.  (Massachusetts). 

Porter's  R.  (Alabama). 

Precedents  in  Chancery  (England). 

Purdon's  Digest  (Pennsylvania  Stat- 
utes). 

Queen's  Bench  R.  (England). 


XVI 


TEXT-BOOKS    AND    REPORTS. 


Railway  Cases  (England). 
Randolph's  R.  (Virginia). 
Rawle's  R.  (Pennsylvania). 
Reports,  Coke's  (England). 
Rhode  Island  Reports. 
Rice's  Equity  R.  (South  Carolina). 
Richardson's  Equity  R.  (South  Caro- 
lina). 
Riley's  Equity  R.  (South  Carolina). 
Robinson's  R.  (Virginia) 
Root's  R.  (Connecticut).  . 
Roper,  Husband  and  Wife,  by  Jacob. 
Rotuli  Parliamentorum. 
Russell's  R.  (England). 
Russell  and  Mylne's  R.  (England), 

Sanford's  Chancery  R.  (New  Yrok). 

Sanford's  Superior  Ct.  R.  (New  York). 

Saxton's  Chancery  R.  (New  Jersey). 

Scammon's  R.  (Illinois). 

Schoales  and  Lefroy's  R.  (Ireland). 

Scott's  New  Reports  (England). 

Selden's  R.  (New  York). 

Select  Chancery  Cases  (England). 

Selwyn's  Nisi  Prius. 

Sergeant  and  Rawle's  R.  (Pennsyl- 
nia). 

Seton  on  Decrees. 

Shepley's  R.  (Maine). 

Shower's  Parliamentary  Cases  (Eng- 
land). 

Siderfin's  R.  (England). 

Simons'  R.  (England). 

Simons'  R.,  New  Series  (England). 

Simons  and  Stuart's  R.  (England). 

Smale  and  GifiFard's  R.  (England). 

Smedes  and  Marshall's  Chancery  R. 
(Mississippi). 

Smedes  and  Marshall's  R. (Mississippi). 

Smith's  Chancery  Practice. 

Smith's  Leading  Cases,  by  Hare  and 
Wallace. 

Smith's  Mercantile  Law. 

Sneed's  R.  (Tennessee). 

South  Carolina  Reports. 

Speer's  Equity  R.  (South  Carolina). 

Stephen's  Blackstone's  Commentaries. 

Stephen  on  Pleading. 

Stewart's  R.  (Alabama). 

Stewart  and  Porter's  R.  (Alabama). 

Stockton's  R.  (New  Jersey). 

Story  on  Equity  Jurisprudence. 

Story  on  Equity  Pleading. 

Story  on  Partnership. 

Story'b  R.  (Circuit  Court  U.  S.).  y 

Strange's  R.  (England), 

Strobhart's  Equity  R.  (South  Caro- 
lina). 

Strobhart's  Law  R.  (South  Carolina). 

Sugden  on  Powers. 


.  Sugden   on  the  Law  of  Property   as 
'       administered  in  the  House  of  Lords . 

Sugden  on  Vendors  and  Purchasers. 

Sumner's  R.  (Circuit  Court  U.  S.). 

Swan's  R.  (Tennessee). 

Swanston's  R.  (England). 

Tamlyn's  R.  (England). 

Tennessee  Reports  (Overton). 

Term  Reports  (England). 

Texas  Reports. 

Turner's  R.  (England). 

Turner  and  Russell's  R.  (England). 

Tyrwhitt's  Bxch.  R.  (England). 

Vermont  Reports. 
Vernon's  R.  (England). 
Viner's  Abridgment. 
Virginia  Revised  Code. 
Vesey  Senior's  R.  (England). 
Vesey  Junior's  R.  (England). 
Vesey  and  Beames'  R.  (England). 

Walker's  Chancery  R.  (Michigan). 

Walker's  R.  (Mississippi). 

Wallace's  R.  (Sup.  Ct.  U.  S.). 

Wallace  Jr.'s  R.  (Circuit  Ct.  U.  S.). 

Washington's  Circuit  Court  R.  (U.  S.) 

Washington's  R.  (Virginia). 

Watts'  R.  (Pennsylvania). 

Watts  and  Sergeant's  R.  (Pennsylva- 
nia). 

Wendell's  R.  (New  York). 

West  Virginia  Reports. 

Wharton's  R.  (Pennsj'lvania). 

Wharton's  Digest  of  Pennsylvania  R. 

Wharton's  R.  (Sup.  Ct.  U.  S.). 

White  on  Supplement. 

Wigram  on  Discovery. 

Wigram  on  Wills. 

William  Blackstone's  R.  (England). 

Williams  on  Executors. 

Williams  on  Real  Property. 

Williams  on  Personal  Property. 

Williams'  R.  (Vermont). 

Wisconsin  Reports. 

Woodbury  and  Minot's  R.  (Circuit  Ct. 
U.S.). 

Wright's  R.  (Ohio). 

Yeates'  R.  (Pennsylvania). 

Yerger's  R.  (Tennessee), 

Younge's  R.  (England). 

Younge   and   Collyer,   Exchequer  R. 

(England). 
Younge  and  Collyer's  New  Chancery 

Cases  (England). 

Zabriskie's  R.  (New  Jersey). 


TABLE  OF  ENGLISH  CASES. 


THE  PAGES  KEFEREED  TO  ARB  THOSE  BETWEEN  BRACKETS  [     ]. 


PAGE 

PACE 

Aberdeen    Ry.    Co.   v. 

Blaikie 

Appleby 

V.  Duke, 

391 

Brothers, 

, 

.        183 

Archer  t 

.  Hale,  .... 

107 

Abernethj  v.  Hutchinson, 

.     213 

Arkwright,  Ex  parte, 

161 

Ackroyd  v.  Smithson, 

33,  138 

Armstro 

Qg  V.  Armstrong,  . 

377 

Acton  V.  Woodgate,   , 

.       31 

Arundel 

V.  Phipps,    . 

151 

Adair  v.  New  River  Co. 

.     321 

Ash  V.  R 

ogle,      .         .         .         . 

65 

Adams  v.  Glaxton, 

165,  386 

Ashby  V 

Ashbv, 

142 

V.  Dowding,    . 

.     413 

Ashburton  r.  Ashburton,  . 

285 

V.  Fisher, 

.        17 

Ashhurs 

t  V.  Mill, 

189 

Adderlej'  v.  Dixon, 

83 

Aston  V. 

Heron, 

199 

Agar  V.  Fairfax, 

230 

,  231,  234 

AtkinsoE 

V.  Gray, 

252 

V.  Regent's  Canal  Co. 

.     212 

V.  Henshaw, 

353 

Agassiz  V.  Squire, 

.      185 

Att.-Gen 

.  V.  Andrew, 

72 

Ahearne  v.  Hogan,     . 

.      184 

V.  Arnold, 

71 

Aldborough  v.  Trye,  . 

.      186 

V.  Aspinwall,   -  . 

67 

Alden  i'.  Gregory, 

.     176 

V.  Bristol,  Mayor  of,  . 

71 

Aldrich  v.  Cooper. 

V.  Butcher, 

400 

257,  263 

270 

272,  275 

V.  Caius  College,         61,  69 

Aldridge  v.  Harper,    . 

.     107 

V.  Clack,    . 

39 

Aleyn  v.  Bekhier, 

.     186 

V.  Clarendon,  Earl  of, 

75 

Alexander  v.  Crosbie, 

.     171 

V.  Cleaver, 

211 

Allen  V.  Macpherson, 

248,  249 

V.  Compton, 

67 

Allfrey  r.  Allfrey,       . 

.     343 

V.  Cooper's  Company, 

71 

Allison  V.  Herring,     . 

.     221 

V.  Corp.  of  London, 

Ambrose  v.  Dunmow  Union, 

.     199 

9,  14,  15,  17 

Ames  I'.  Parkinson,    . 

56,  63 

V.  Cradock, 

310 

Amphlett  v.  Parke,     . 

.      139 

V.  Dixie, 

75 

Ancaster  v.  Mayer,     . 

.     265 

w.  Draper's  Co.  .  68,  69,  71 

Ancaster,  Duke  of,  v.  Mayer, 

261,  263 

V.  Dublin,  Mayor  of,  67,  75 

Anderson  v.  Wallis, 

.     302 

V.  East  Retford, 

11 

V.  Guichard, 

.     355 

V.  Exeter,  Mayor  of,  . 

68 

V.  Noble,     . 

.      196 

V.  Fishmongers'  Co.  . 

414 

Anderton  v,  Yates, 

, 

.     287 

V.  Flint, 

69 

Andrews  v.  Lockwood, 

. 

.     406 

V.  Foord,    . 

74 

V.  Partington, 

.     287 

V.  Forbes,  .         .211, 

212 

V.  Walton, 

.     397 

V.  Foster,    .         .     411, 

412 

Angel  V.  Smith, 

. 

.     353 

V.  Foundling  Hospital, 

75 

Angell  V.  Angell, 

. 

.       24 

V.  Goldsmiths'  Co. 

310 

V.  Davies, 

.     400 

V.  Green,    . 

72 

Anon.  V.  Walker, 

. 

56 

V.  Grocers'  Co.  . 

77 

Anonymous, 

.     283 

V.  Heelis,    . 

321 

Ansdell  v.  Ansdell,      . 

218, 

357,  375 

V.  Ironmongers'  Co.  . 

73 

Ansley  v.  Bainbridge, 

. 

.     105 

V.  Jackson,          .        84, 

238 

Antrobus  v.  Davidson, 

,     270 

V.  Lambe,  . 

17 

V.  Smith,     . 

. 

.      100 

V.  Leeds,  Duke  of,     37, 

115 

Apperly  r.  Page, 

241,  322 

V.  Liverpool,  Mayor  of, 

61 

xvm 


TABLE  OF  ENGLISH  CASES. 


Att.-Gen.  v.  Lubbock, 

.       75 

Ballard  v.  White, 

.     386, 

387 

V.  Lucas 

4 

Balmain  v.  Shore, 

245 

V.  Manchester  and  Leeds 

Balmanno  v.  Lumley, 

380 

Railway  Compa 

ay,      218 

Bamford  v.  Bamford, 

390 

V.  Mangles, 

.     136 

Hampton  v.  Birchall, 

.      408, 

413 

V.  Merchant  Tailors' Co.  310 

Bannatyne  v.  Leader, 

. 

15 

V.  Mullay,  . 

.     290 

Barfield  v.  Kelley, 

. 

413 

V.  Newark,  Corporation 

Bariatinski,  Re, 

290 

of,        . 

.       74 

Baring  v.  Nash, 

, 

230 

V.  Nicholl, 

.      211 

Barker  v.  Wardle, 

261 

V.  Pargeter, 

.        74 

Barnard  v.  Wallis, 

.      196 

359 

V.  Pearson, 

.     373 

Barned  v.  Laing, 

360 

V.  Poole,  Corporat 

ion 

Barnes  v.  Racster, 

274 

of,        .         . 

67,  310 

V.  Grant, 

31 

V.  Pretyman, 

.       68 

Barnett  v.  Weston,     . 

163 

V.  Ray, 

.       25 

Barnesdalet;.  Lowe,  . 

35 

V.  Sands,    . 

51 

Barrett  v.  'i'ickel. 

356 

t7.  Severne, 

290,  372 

Bartlett  v.  Bartlett,    . 

351 

V.  Sheffield  Gas  C 

on- 

V.  Gillard,     . 

21 

Burners'  Co. 

.     211 

Bartley  v.  Bartley, 

16 

V.  Shore,    . 

61 

Barry  v.  Wrey,  . 

115 

V.  Shrewsbury,  . 

.       67 

Bartle  v.  Wilkins, 

115 

V.  Sitwell, 

.     172 

Basset  v.  Nosworthy, 

149,  151 

162 

V.  Skinners' Company,      71 

Bastard  v.  Clarke, 

. 

413 

V.  Smythies,. 

71,75 

Bate  V.  Bate, 

. 

18 

V.  Southgate, 

.     265 

Bateman  v.  Willoe,     . 

197 

V.  Todd,      . 

.       73 

Bath,  Earl  of,  v.  Sherwin, 

202 

V.  Wansay, 

.       72 

Batty  V.  Chester, 

175 

V.  Whitchurch,  . 

.       71 

Bayley  v.  Leominster, 

Corpora- 

V.  Wilkins, 

69,  162 

tion  of,    . 

, 

89 

V.  Wilson,  .        71, 

268,  319 

Beadle  v.  Burch, 

176 

Attwood  V.  Banks, 

.      198 

Beach  v.  Keep,   . 

80 

V.  Small,    176,  177, 

189,  321 

Bear  v.  Smith,    . 

. 

262 

Austen  v.  Hasley, 

.     289 

Beatson  v.  Beatson,    . 

. 

80 

V.  Taylor, 

.       42 

Beattie  v.  Johnston,    . 

316 

V.  Boyes, 

.     246 

Beauchamp  v.  Huntley 

Marquis 

Aveling  v.  Knipe, 

35 

of,  .         .         .         . 

. 

260 

Averall  v.  Wade, 

270,  273 

Beaumont  v.  Braraley, 

.      170 

175 

Aylett  V.  Ashton, 

46,  91 

V.  Meredith, 
Beavan  v.  Gilbert, 

.      242 

321 
385 

Bacon  v.  Jones, 

218,  357 

V.  Carpenter, 

. 

25 

V.  Spottiswoode, 

.     219 

Beckford  v.  Wade, 

63 

Badcock,  Re, 

.     297 

Belcher  v.  Varden,     • 

111 

Bailey  v.  Richardson, 

.     112 

Belchier  v.  Butler, 

. 

162 

V.  Taylor, 

.     219 

Belfast,  Earl  of,  v.  Chichester,   . 

24 

V.  Weston, 

195,  359 

Bell  V.  Cureton, 

31 

302 

Bainbrigge  v.  Blair,  61,  353, 

355,410 

V.  Dunmore, 

347 

Bainford  v.  Bainford, 

.     390 

V.  Phyn, 

. 

246 

Baggett  V.  Meux, 

44,  45 

V.  Whitehead, 

215 

Baglehole  v.  Walters, 

.     179 

Bellamy  v.  Sabine,     . 

.'      157 

175 

Baker  v.  Harris, 

.     164 

Bellwood  V.  Wetherell, 

9 

V.  Hart,    . 

.     377 

Benan  v.  Rufford, 

,                  , 

212 

V,  Bradley, 

45,  184 

Benbow  v.  Townsend, 

,                  , 

28 

Balfe  V.  Lord,     . 

.     126 

Bennett  v.  CoUey, 

55 

Balfour  v.  Welland,    . 

.     156 

Ex  parte, 

,                  , 

61 

Ball  V.  Ball, 

.     283 

V.  Ingoldsby, 

, 

167 

V.  Coutts,    . 

288,  289 

V.  Smith, 

77 

V,  Harris,    . 

.     255 

Benson  v.  Baldwin,     . 

238 

V.  Mannin, 

.     183 

Bent  V.  Young,  . 

,                  , 

19 

V.  Montgomery, 

.       49 

Bentley  v.  Bates, 

. 

247 

TABLE  OF  ENGLISH  CASES. 


XIX 


Bentinck  v.  Willink, 

196,  359 

Benyon  v.  Nettlefield, 

3,  20 

Beresford  v.  Archbishop 

of. 

Ir- 

magh,      . 

. 

46 

Beresford  v.  Driver,    . 

12,  14 

Berkeley  v.  Rider, 

. 

347 

Berkhampstead  Free  School, 

Ex 

parte. 

75 

Bernal  v.  Donegal, 

361 

Bernard  v.  Drought,  . 

160 

Berney  v.  Sewell, 

122,  353 

Besch  V.  Frolick, 

243 

Betts  V.  Menzies, 

6 

Biddulph's  and  Poole's  Trusts,  Rs 

,    290 

Biederman  v.  Seymour, 

262 

Bignold  V.  Audland,   . 

205,  206 

V.  Springfield, 

39!) 

Bilbie  v.  Lumley, 

189 

Bill  V.  Cureton, 

31,302 

Binns  v.  Parr,     . 

351 

Birkett  v.  Hibbert,      . 

288 

Birkley  v.  Presgrave, 

271 

Birley  v.  Chorlton,     . 

212 

Birmingham  v.  Kirwan, 

94 

Bishop  V.  Church, 

172 

B.  J.,  Re,    . 

292 

Blachford  v.  Christian, 

183 

V.  Kirkpatrick,  . 

87 

Blackburn  v.  Stables, 

42 

V.  Staniland, 

414 

V.  Warwick, 

112 

Blacket  v.  Lamb, 

. 

94 

Blackeney  t;.  Dufaur, 

. 

243 

Blackie  v.  Clarke, 

. 

177 

Blacklows  V.  Law, 

45 

Blain  v.  Agar,     . 

317 

Blair  v.  Bromley, 

173, 

174,  177 

Re,     .         .         . 

. 

29'r 

Blake  v.  White, 

107 

Blakemore  v.  Glamorgan  Cana! 

Company, 

211 

212,  218 

Bland  v.  Winter, 

319 

Blandy  v.  Widmore,  . 

. 

105 

Blaydes  v.  Calvert,     . 

360 

Blenkinsopp  v.  Blenkinsopp, 

180 

Bligh  V.  Brent,  . 

245 

Bloffeld  V.  Payne 

217 

Blomfield  v.  Eyre, 

281 

Blount  I'.  Hipkins, 

265 

Blundell  v.  Gladstone, 

199 

V.  Winsor,    . 

242 

Blunden  v.  Desart,     . 

164 

Boehm  v.  Wood, 

354 

36 

0,  361 

Bolton  V.  Liverpool,  Corporatior 

of,            ... 

.        15 

Bond,  Ex  parte, 

.     288 

V.  Hopkins, 

.     228 

V.  Kent,    . 

.      128 

Booth  p.  Booth, 

.        59 

V.  Creswicke,  . 

4C 

0,408 

Bootle ».  Blundell,      .      250,377,378 
Bor  V.  Bor,  ....       95 

Borell  V.  Dann,  .         .         79,  159 

Boschetti  v.  Power,  .  .  .  351 
Bostock  V.  North  Stafford  R.  R.,  211 
Boughton  V.  James,  .  .  .  265 
V.  Boughton,  .  .  263 
Boultbee  v.  Stubbs  .  .  .107 
Boulter  v.  Boulter  .  .  .198 
Bouverie  v.  Prentice,  .         .     238 

Bower  v.  Cooper,        ...       79 
Bowes  V.  Feme,  ...       15 

Bowles  «.  Orr     .         .         .         .     221 
V.  Weeks,       ...      39 
Boys  V.  Ancell,  .         .         .108 

Boyse  v.  Colclough,  .         .     249 

V.  Rossborough,  .  .  249 
Bozon  V.  Farlow,  ...  82 
Bradbury  v.  Manchester,  &c.,  R. 

R., 218 

Brace  v.  Blick,  .         .         .         .373 
V.  Marlborough,  Duchess 


of, 

V.  Whenert, 
Braddick  v.  Thompson, 
Bramwell  v.  Halcomb, 
Brandon  v.  Brandon, 
V.  Robinson, 
Braybrooke  v.  Meredith, 
Breadalbane  v.  Chandos, 
Brealey  v.  Collins, 
Breeze  v.  English, 
Brenan  i'.  Preston, 
Brice  v.  Stokes, 
Bridge,  Re, 

V.  Bridge, 
Bridges  v.  Stephens, 
Bridget  v.  Hames, 


162 


164 

83 

193 

215 

391 

42 

54 

170 

84 

382 

233 

58,  62 

293 

80 

209 

317 


59, 


Bridgewater,  Duke  of,  v.  Edwards,  238 

Briggs  V.  Penny, 

Bright  V.  Hutton, 

Bristed  v.  Wilkins, 

Bristow  V.  Warde, 

Broadhurst  v.  Balguy, 

Brocklehurst  v.  Jessop, 

Brodie  v.  Barry, 

Bromfield,  Ex  parte,  . 

Bromley  v.  Smith, 

Brooke  t;.  Hereford,  Lord 

V.  Greathed,   . 

Lord  V.  Rounthwaite, 


Brookfield  v.  Bradley, 
Brookes  t*.  Burt, 
Brooks  V.  Stuart, 
Broom  v.  Broom, 
Broome  v.  Monck, 
Browell  v.  Read, 
Brown  r.  Bamford, 
V.  Blount, 
tj.  Carter, 


29,  31 

239 

133 

93 

382 

.  '  125 

.       93 

.     143 

.     321 

230,  232 

122,  353 

.       91 

121,  285 

.     315 

107,  319 

.     245 

.      141 

.     3.53 

.       45 

323 

46 


XX 


TABLE    OF    ENGLISH    CASES. 


Brown  v.  Cole,   . 

.     110 

V.  Higgs, 
V.  Lake,  . 

.       30,  396 
.     262 

V.  Lee,     . 

268 

V.  Lockhart     . 

115 

V.  Tapscott,     . 
V.  De  Tastett, 

- 

240 
,     249 

V.  Weatherby, 
Browne,  Re, 

173 

280 

Bruce,  Ex  parte, 
Bruin  v.  Knott,  . 

.     125 
287,  288,  375 

Brunswick,  Duke  of,  v.  Hanover, 

King  of,  .         .         .         .314 

Brunswick  v.  Cambridge,  .  11,.  344 
Buckland  V.  Pocknell,  .  .  128 
Buckle  V.  Mitchell,  .  .  146,  153 
Buckley  v.  Barber,  .  .  .  246 
Buckworth  v.  Buckworth,  .     287 

Bugdeu  V.  Bignold,  .  .  .  273 
Bullock  V.  Wheatley  .         .       56 

Bulwer  V.  Astley,  .  .  111,270 
Bunburyv.  Banbury,  .  7,  198 

w.  Winter,    .         .         .112 
Bunn,  Ex  parte,  •         .         .     370 

Burbridge,  Re,  .  .  .  .  297 
Burch  ?;.  Coney,  .         .         .     334 

Burges,  Re 292 

Burgess  v.  Burgess,    .         .         .217 

V.  Wheate,37,  50,  51,  113,115 

Buries  v.  Popplewell,  .         .    260 

Burley  t).  Charlton,    .         .         .212 

Burn  V.  Carvalho,       ...       54 

Burnham  v.  Bennett,  .         .     142 

Burrell's  Case,   ....     146 

V.  Egremont,   .         .         .     270 

V.  Nicholson,  ...       15 

Burrongh  v.  Philcox,  .         .       30 

Burroughs  v.  Elton,   .         .         .     252 

V.  Oakley,  .         .       87 

Burton  v.  Eggington,  .         .     322 

Butcher  V.  Butcher,    .         .         .     186 

Bullint'.  Masters,       .         .         .     378 

Byde  i>.  Masterman,    .         .         11,306 

Byne  v.  Vivian,  .         .         .     191 

Byrchal  v.  Bradford,  .        63, 251 

Cadman  v.  Horner,     ...       84 

Cadogan  v.  Kennett,  .         .     147 

Cafe  V.  Bent,       ....       39 

V.  Roberts,  ...       39 

Calcraft  v.  Roebuck,  .         .       87 

■y.  West,        .        .        .213 

Caldecottv.  Griffith,  .        .     239 

Caldwell  v.  Van  Vlissengcn,       .     212 

Calvert  v.  Godfrey,     .         .         .285 

Camp  V.  Moody, ....     388 

Campbell  v..  Mackay,        282,  310,  335 

V.  Scott,     .         .         .215 

V,  Solomons,      .         .     206 

Cann  v.  Cann,     .         .         .         .       24 


12 


Cannings  v.  Flower, 
Capel  V.  Girdler, 
Capper  v.  Spottiswoode, 
Carmichael  v.  Hughes, 
Carpmael  v.  Powes,    . 
Carr  v.  Appleyard, 
Carter  v.  Boehra, 
Cartwright  v.  Cartwright, 
Carver  v.  Bowles, 
Carysfoote,  Re, 
Cass  V.  Cass, 
Castellain  v.  Blumenthal, 
Cathcart  v.  Lewis, 
Caton  V.  Lewis, 
Catton  V.  Carlisle, 
Caulfield  v.  Maguire, 
Cavan  v.  Pnlteney, 
Cawder  v.  Lewis, 
Chalie  v.  Pickering, 
Chalmer  v.  Bradley, 
Chamberlain  v.  Lee, 
Champernowne  v.  Scott, 
Champion  v.  Champion. 
Chancey's  Case, 
V.  May, 
Chant  V.  Brown, 
Chaplin  v.  Chaplin 
Chapman  v.  Chapman 

V.  Esgar, 
Chappel  V.  Purday, 
Cherry  v.  Boultbee 

V.  Mott, 
Chervet  v.  Jones, 
Chesterfield,  Earl  of,  v.  Janssen, 
Chippendale,  Ex  parte, 
Cholmondely  v.  Clinton, 
113, 
Christian  v.  Corren,   . 
V.  Foster,    . 
V.  Taylor,    . 
Christophers  v.  Sparke, 
Christ's  Hospital  v.  Grainger, 
Church  V.  Kemble, 
Churchman  v.  Ireland 
Clapham  v.  Shillito, 

V.  White,     . 
Clare  v.  Wood,  . 
Clarendon  v.  Barham, 
V.  Hornby, 
Claridge  v.  Hoare, 
Clark  V.  Burgh, 

V.  Drew,    . 
Clarke  v.  Bicker, 

V.  Freeman,     . 

V.  Franklin,     . 

V.  Grant, 

I'.  Ormonde,  Earl  of, 

V.  Parker, 

V.  Re, 

V.  Royle, 


287 

52 

128 

287 

370 

371 

179 

45 

94 

297 

372 

356 

317 

14 

413 

269 

96 

150 

199 

228 

89 

384 

3G4 

105 

321 

6,  15 

288 

4,  309 

257 

400 

223 

71 

20 

187 

124 


119,  191,  302 

65 

390 

11 

115 

68 

95 

94 

177 

356 

132 

263 

231 

3,4 

174 

354 

172 

217 

139 

84 

259 

186 

286,  297 

.     128 


TABLE    OF    ENGLISH    CASES. 


XXI 


Clarke's  Charity,  In  re, 

. 

76 

Clay  V.  Willis,    . 

256 

Clayton  v.  Cookes,     . 

65 

V.  Meadows, 

. 

376 

V.  Nugent,    . 

376 

V.  Winchelsea, 

338 

V.  Illingsworth,     . 

, 

83 

Clayton's  Case, 

. 

221 

Clementson  r.  Gandy, 

. 

95 

Clements  v.  Bowes,     . 

. 

320 

Clermont  v.  Tasburgh, 

84 

Clowes  V.  Beck, 

392 

Clifford  V.  Turrell,     . 

83 

,382 

Clinan  i'.  Cooke, 

, 

87 

Close  V.  Wilberforce, 

142 

Clough  V.  Bond, 

56,  58 

V.  Radeliffe,   . 

242 

322 

Clowes  V.  Higginson, 

85 

Clunn  V.  Crosts, 

408 

Cock  V.  Richards, 

187 

Cockell  V.  Taylor,       . 

174 

Cockerell  v.  Cholmeley,     . 

370 

Cogan  V.  Stephens,     .        33, 

138 

392 

Colborn  v.  Simms, 

219 

Colclough  V.  Evans,  . 

413 

Coleman  v.  Winch,     . 

165 

V.  Mellersh, 

226 

Coles  t>.  Sims,     . 

152 

r.  Trecothick, 

61 

CoUard  v.  Allison, 

218 

CoUett  V.  Morrison,    . 

169 

Collins  V.  Archer, 

162 

V.  Wakeman, 

33 

Collis  I'.  Bobbins, 

263 

CoUinson  v.  Wakeman, 

360 

t).  Patrick, 

80 

Colman  v,  Croker, 

148 

Colombine  v.  Chichester,  . 

83 

Colyer  v.  Clay,  . 

188 

Coombe,  Ex  parte, 

124 

V.  London  Corporation 

of,     .        .        . 

16 

Coming,  Ex  parte, 

124 

Commissioners  of  Donatioae 

1    V. 

Wybrandts,     . 

69 

Connop  I'.  Hayward,           21, 

226, 

382 

Const  V.  Harris, 

243, 

354 

Coningham  v.  Plunkett,     . 

. 

80 

Cook  V.  Black,   . 

54 

V.  CoUinridge,  . 

245, 

246 

r.  Hutchinson, 

33 

Cooke  V.  Clayworth,  . 

. 

183 

V.  Lamotte, 

184 

Cookson  V.  Cookson,        136, 

137, 

245 

Coorg  V.  East  Ind.  Co., 

8 

Coope  V.  Eyre,    . 

. 

239 

V.  Twynam, 

269 

Cooth  V.  Jackson, 

87 

Copis  t'.  Middleton,    . 

269 

Corbyn  v.  French, 

. 

71 

.  82 
.     224 

313,  403 
.  210 
.     316 

223,  387 
.  39 
.  39 
.  268 
.  206 
.     372 

254,  256 
.  252 
.  137 
.  64 
51,  139,  263 
.  61 
.  26 
.  246 
,  245,  247 

203,  205 
.     269 


241 


Coslake  v.  Till, 
Cottom  V.  Partridge, 
Cottingham  v.  Shrewsbury 
Coulson  V.  White, 
Court  V.  Jeffery, 
Courtenay  v.  Williams, 

V.  Courtenay, 
Coventry  v.  Coventry, 
Cowell  V.  Edwards,    . 
Cowtan  V.  Williams, 
Cox  V.  AUingham, 

Creditors  of,    . 

Lady,  Case  of, 

Crabtree  v.  Bramble, 

Crackfelt  v.  Bethune, 

Cradock  v.  Owens,     . 

V.  Piper, 
Crawford  v.  Fisher,    . 
Crawshay  v.  Collins, 

V.  Maule,    . 

V.  Thornton, 
Craythorne  t'.  Swinburne, 
Creak  v.  Capel,  ....     351 
Greaser  v.  Robinson,  .         .     301 

Creuze  v.  Hunter,  .  .  .  388 
Croft  V.  Day,  .  .  .  .217 
Crompton  v.  Wombwell,  .  .  413 
Crosbie  v.  Tooke,  .  .  .  177 
Cross  V.  Cheshire,  .  .  .  240 
r.  Sprigg,  .         .         .106 

Crosse  v.  Bedingfield,  .  .  20 
Crossley  v.  Derbj'  Gas  Company,  219 
Crowder  v.  Tinkler,  .  .  .211 
Crowfoot  V.  Mander,  .         .     404 

Crowley's  Case,  .         .         .     197 

Cruikshank  v.  Mc Vicar,  .  .  309 
Cruttwell  V.  Lye,  .  .  217,  246 
Cudd  V.  Rutter,  ...       83 

Gumming,  Re,  .  .  .  .  293 
Curd  V.  Curd,  ...  15,  382 
Curling  v.  Towshend,  .  .  347 
Curtis  V.  Curtis,  .       234,  235,  236 

Gustance  v.  Bradsbaw,  .  .  246 
Cutler  V.  Simons,  .  .  .  352 
Cutler's  Trust,    ....       48 

Dale  V.  Hamilton,        .  .  28,  35,  87 

D'Almaine  v.  Boosay,  .  .     215 

Daniel  v.  Skipwith,  .  .     120 

Darby  v.  Baines,         .  .  .     233 

V.  Darby,         .  .  .239 

D'Arcy  v.  Blake,  .  .       51 

Darley  f.  Nicholson,  .  .     199 

Darthez  v.  Clemens,  .  .  .     226 

Dartmouth  v.  Holdsworth,  .         7 

Daubeny  v.  Gockburn,  .  .     185 

Davenport  v.  Bishopp,  .  78,  146 

V.  Davenport,  .  .     208 

Davies  v.  Davies,         .  .  .     297 

V.  Denby,        ^  .  .112 


xxu 


TABLE  OF  ENGLISH  CASES, 


Davies  v.  Quarterman,        .         .     302 
Davis  V.  Bluck,  .         .         ,         .416 
V.  Cripps,  .         .         .11 

V.  Dending,  .  .  .112 
V.  Dowding,  .  .  121,  285 
V.  Frowd,  .         .         .262 

V.  Humphreys,  .      '  .     269 

V.  Johnson,  .  .  .  233 
V.  Marlborough,  Duke  of, 

181,  353 
V.  Strathmore 
V.  Thomas, 


155 
.  Ill 
.  212 
.  292 
.  282 
.  268 
.  209 
.  36 
53,  56,  161 
.  397 


Pawson  V.  Paver, 

Re, 

V.  Jay, 

V.  Lawes, 
Day  V.  Merry, 
DeaconiJ.  Smith, 
Dearie  v.  Hall,  . 
Dearman  v.  Wych, 
De  Beauvoir  v.  De  Beauvoir,  .  138 
De  Costa  v.  Scandret,  .  .  \19 
Deeks  v.  Strutt,  .         .         .250 

Deerhurst,  Lord,  v.  St.  Albans, 

Duke  of,  ....       42 

Deering  v,  Winchelsea,  Earl  of, 

268,  269 
Deeth  v.  Hale,  .  .  .  .137 
De  Manneville  v.  De  Manneville, 

281,  283 
Dent  V.  Bennett,  .  ,  .  185 
Denton  v.  Davis,  .  ,  .  144 
Denys  v.  Locock,  .  .  338,  340 
V.  Shruckburgh,  .  .  191 
Derby,  Earl  of,  v.  Athol,  Duke  of,  19 
Derbyshire  v.  Home,  .         .     402 

Desborough  v.  Harris,  .  .  203 
De  Themmines  v.  De  Donneval,  71,  73 
De  Vaynes  v.  Morris,  .         .     407 

Devon,  Duke  of,  v.  Eglin,  .  .  320 
Devonshire  v.  Newenham,  .     315 

Dietrichsen  v.  Cabburn,  .  .  82 
Dickinson    v.    Grand    Junction 

Canal  Co.,  .  .  .  .207 
Dickson  V.  Gayfere,  .  .  .136 
Digby,  Ex  parte,  ,  .  .297 
Dikes,  Ex  parte,  .  .  .  297 
Dillon  V.  Coppin,  ...  80 
V.  Parker,  ...  96 
Dilly  V.  Doig,  .  .  .  .200 
Dimes  v.  Steinburg,  .  .  248,  353 
Dinwiddie  v.  Bailey,  .         .     221 

Dixon  V.  Wyatt,  .         .     -  .     410 

Dobson  «.  Land,  .        .        .     118 

Docker  v.  Somes,  ...  64 
Dodd  V.  Lydall,  ,         ,         .223 

Doddington  v.  Hallett,        .         .     268 
Doe  V.  Lewis,      ....     146 
V.  Manning,  .         .         .     146 

V.  Rolfe,       .         .         .         .146 


Doe  V.  Rusham, 

V.  Jones, 
Doloret  v.  Rothschild, 
Donaldson  v.  Beckett, 
Donovan  v.  Needham, 
Dos  Santos  v.  Frietas, 
Dovrne  v.  Morris, 
Downes  v.  Grazebrook, 


146 
52 
83 

213 

103 
9 

113 
61 


Downshire,  Marquis  of,  v.  Sandys,  209 

Drake  v.  Drake,  .         .         .     401 

V.  Marty n,         .         .         .58 

Druce  v.  Denison,       ...       95 

Drummond  v.  Pigon,        117,  195,  359 

Re,  .         .         .         .     297 

Dryden  v.  Frost,         .         .         .111 

Dubless  V.  Flint,         .         .         .351 

Dubost  V.  Beresford,  .         .     216 

Ex  parte,         .         .         .103 

Du  Hourmelin  v.  Sheldon,         42,  138 

Duke  V.  Barnett,         ...       87 

Duke  of  Ancaster  v.  Mayer,    261,  263 

Dk.  Brunswick?;.  Dk.  Cambridge, 

11,  345 
Duke  of  Devon  v.  Eglin,  .     320 

Dummer  v.  Corporation  of  Chip- 
penham, ....  4 
Dummer  v.  Pitcher,  ...  95 
Duncan  v.  Campbell,  .  .  49 
V.  McCalmont,  .  .  197 
Duncuft  V.  Albrecht,  .  .  83 
Dundas  v.  Dutens,  .  .  .  148 
Dunnage  v.  White,  .  .  .  189 
Dursley  v.  Fitzhardinge,  .  .  24 
Dutton  V.  Morrison,  .  .  .  242 
Duvergier  v.  Fellowes,  .  .  242 
Dyer  v.  Dyer,  ....  35 
D3'kes  V.  Blake,  .  .  .178 
Dyson  v.  Morris,         .         .         .     415 


Eades  v.  Harris, 
Earle  v.  Pickin, 
Earnshaw  v.  Thornliill, 
East  V.  East, 
E.  I.  Company  v.  Bazett, 
/  V.  Boddam, 

V.  Campbell, 
V.  Donald,  . 
V.  Keighly, 
V.  Vincent, 
Ede  V.  Knowles, 
Eden  v.  Bute,  Lord,    . 
Eddleston  v.  Collins,  .      40 

V.  Vick, 
Edsell  V.  Buchanan,  . 
Edwards  v.  Abrey,     . 
V.  Brown,    . 
V.  Burt, 
V.  Edwards, 
V.  Grand  Junction  Rail- 
way,      .         .         79 


408 
305 
358 
21 
377 
168 
3 
188 
388 
150 
147 
399 
2,  403 
217 
335 
297 
187 
186 
303 


92 


TABLE  OF  ENGLISH  CASES. 


XXIU 


Edwards  v.  Jones, 
V.  McLeay, 
V.  Martin, 
V.  Meyrick, 
Egerton  v.  Brownlow 

V.  Jones, 
Eland  v.  Eland, 
Elgie  V.  Webster, 
Elias,  Matter  of, 
Elibank  v.  Montolieu 
EUard  v.  Cooper, 
Elliot  V.  Cordell, 
V.  Turner, 
Elliott  V.  Merryman, 
Ellis  V.  Lewis,    . 
Ellison  V.  Elwin, 
Emerson  v.  Harland, 
Empringham  v.  Short, 
England  v.  Downs,     . 
England,  Mary,  Re,    . 
Errington  v.  Aynesley, 
Esdaile  v.  Stephenson, 
Etty  V.  Bridges, 
Evans  V.  Bieknell,     . 
V.  Brown, 
V.  Cogan, 
V.  Stokes, 
Evelyn  v.  Evelyn, 
V.  Lewis, 
Exton  I'.  Scott,  . 
Eyre  v.  Countess  of  Shaftesb 
f.  Everitt, 
V.  Marsden, 
EytOQ  V.  Mostyn, 

Fallowes  v.  Williamson, 
Fairthorne  v.  Weston, 
Farina  v.  Silverlock, 
Farquharson  v.  Seton, 
Farr  v.  Pearce,  . 
Farwell  v.  Coker, 
Faulder  v.  Stuart, 
Faulkner  v.  Daniel, 
Featherstonehaugh  v.  Fenwi 
60, 
Fell  V.  Brown,    . 
Fellowes  v.  Gwydyr,  Lord, 
Fencott  v.  Clarke, 
Fenns  v.  Craig,  . 
Fenn  v.  Edmonds, 
Fenner  v.  Taylor, 
Fenton  r.  Brown, 
Fenwick  v.  Reed, 
Fereday  v.  Wightwick, 
Fermor,  Ex  parte, 
Few  V.  Guppy,    . 
Field,  Ex  parte. 
Fight  V.  Bolland, 
Fildes  V.  Hooker, 
Finch  V.  Finch, 


80,  356 

.     178 

.     121 

.     184 

42 

.     387 

.     156 

.     240 

,     294 

48 

.     275 

49 

.     109 

.      156 

.       94 

.     142 

.     338 

199,  385 

182,  383 

.     288 

.       83 

.       89 

.      161 

151,  174 

.     264 

.     263 

.     321 

.     265 

.     199 

80 

281 

107 

•     .      138 

196,  356 

.     414 

.     241 

.     378 

313,  403 

.     246 

.     189 

11 

112,  270 

ck, 

241,  245 

323 

177 

350 

179,  321 

206 

49 

392 

126 

247 

293 

357 

272 

82 

91 

100 


lury 


Finch  V.  Shaw,  .         .      151,  162 

Fisher  v  Fisher,  .         .         .     365 

Fisk  V.  Norton,  .         .         .     379 

Fitch  V.  Weber,  ,         .         .138 

Fitzgerald,  Re,  .         .      291,  298 

Fitzpatrick  v.  Nowlan,  .  .  82 
Flack  r.  Holm,  .         .         .360 

Flamank,  Ex  parte,  .  .  .  136 
Flavell  V.  Harrison,  .  .  .  217 
Fleming  v.  Buchanan,  99,  263,  276 
Fletcher  v.  Ashburner,  .  136,  137 
V.  Fletcher,  ...  80 
Flight  V.  Bolland,  ...  82 
Flint  V.  Brandon,  ...  83 
V.  Warren,  ...       32 

Flower  v.  Hartopp,  .  .  .  386 
Foley  V.  Hill,  .  20,  226,  338,  339 
FoUand  v.  Loraotte,  .  .  .  406 
Forbes  v.  Peacock,  .  .  .  156 
Ford  V.  Dolphin,  ...       15 

Fordhara  v.  Wallis,  .  .  269,  275 
Fortescue  v.  Barnett,  .         .       80 

Forth  V.  Norfolk,  Duke  of,  .     129 

Foss  V.  Harbottle,  ,  .  .  335 
Foster  v.  Alanson,      .         .         .     240 

V.  Cockrell,      .         .        53,  161 

V.  Handley,       .         .         .     254 

Fourdrin  v.  Gowdey,  .         .     138 

Fowler  v.  Garlike,      .         .         .       33 

Frampton  v.  Frampton,      .         .       45 

Freeman  v.  Baker,      .         .         .178 

V.  Fairlie,    .         .       57,  351 

V.  Lomas,     .         .         .     223 

V.  Tatham,  ...       21 

Frelland  v.  Stansfield,        .         .     243 

Frere  v.  Greene,         ...       24 

V.  Moore,  .         .         .     162 

Frewin  v.  Lewis,  .  .  .  212 
Frowd  V.  Lawrence,  .  .  .  198 
Fuller  V.  Bennett,       .         .         .157 

V.  Knight,  ...  62 
Fulton  V.  Gilmore,  .  .  .  347 
Fyler  v.  Fyler,    ....       62 

Gaffee's  Trust,   ....       44 

Garcias  v.  Ricardo,    .         .         .     401 

Garden  v.  Ingram,      .         .         .118 

Gardner  v.  Blane,       .         .         .     284 

V.  Lachlan,  .         .        54,  161 

t'.  Marshall,  .         .       49 

V.  McCutcheon,     .         .     357 

V.  Rowe,        ...       28 

V.  ,         .         .         .     360 

Garmstone  v.  Gaunt,  .         .     285 

Garrard  v.  Lauderdale,  Lord,  .  31 
j  Gartside  v.  Outram,  .  .  •  6 
!  Gaskell  i>.  Gaskell,  .  .  230,316 
\  Gaylor  v.  Fitzjohn,  .  .  .  385 
I  Gee  t).  Pritchard,  .  .  213,216 
I  George  v.  Milbank,     .         .         .     146 


XXIV 


TABLE    OF    ENGLISH    CASES. 


Gervis  v.  Gervis, 

265 

Gibbs  V.  Glamis, 

, 

31 

Gibson  v.  Bell,  . 

, 

223 

V.  D'Este, 

178 

GiflFard  v.  Hort, 

399 

412 

Gilbee  v.  Gilbee, 

. 

291 

Gillespie  v.  Alexander, 

•   . 

262 

Gillett  V.  Peppercorne, 

. 

184 

Gilpin  V.  Southampton, 

. 

259 

Gingell  v.  Home, 

249 

Glasscott  V.  Lang.       .    . 

.     176 

198 

Glascott  V.  Copperminers' 

Co. 

9,20 

314 

Glassington  v.  Thwaites, 

.     241 

333 

Glendinning,  Ex  parte, 

107 

Glengall  v.  Eraser,     . 

12 

Gloucester,  Corp.  of,  v.  W( 

>od,  . 

401 

Gljn  V.  Duesbury, 

204 

Glynn  v.  England,  Bank  o 

J 

168 

Goddard,  Re,      . 

117 

V.  Snow, 

, 

182 

Goldsmid  v.  Goldsmid, 

105 

Gooch's  Case,    . 

146 

Goodall  V.  Little, 

•     e'. 

r,  17 

Goode!^.  Burton, 

126 

Goodsonj;.  Ellison,    . 

&9 

318 

Goodman  v.  Sayers, 

193 

V.  Whitcomb,  24 

1,243, 

354 

Gordon  v.  Atkinson, 

33 

138 

V.  Gordon,    . 

179 

189 

V.  Graham,  . 

110 

164 

Re,       .         . 

292 

V.  Simpkinson, 

. 

236 

Gore  V.  Bowser, 

6 

V.  Gibson, 

. 

183 

Gosling  V.  Carter, 

255 

Goss  V.  Nugent,  Lord, 

84,  87 

Goulson  V.  White, 

, 

210 

Graham  v.  Coape, 

, 

333 

V.  Oliver, 

91 

Grant  v.  Grant, 

361 

Re,  . 

.     384, 

387 

V.  Lynam, 

30 

Gray  v.  Downman,     . 

173 

V.  Haig,      . 

, 

403 

Great  North  of  England  , 

Tune- 

tion  Railway  V.  Clarence 

Rail- 

way,        .         .         .         . 

, 

218 

Great  Northern  R.  R.  v. 

Man- 

Chester  R.  R., 

207 

Greedy  v.  Lavender,  . 

49 

Green  v.  Bridges, 

106 

V.  Green, 

Vs 

,  92 

V.  Holden, 

117 

V.  Pledger, 

20 

V.  Weaver, 

5 

Greenlaw  v.  King, 

7 

Greenough  i'.  Gaskell, 

6 

Greenway,  Ex  parte, 

168 

Greenwood  v.  Atkinson,    . 

347 

Greenwood  v.  Evans,  .         .       55 

V.  Taylor,  .      121,  272 

V.  Wakeford,  .         39,  62 

Gregory  v.  Gregory,  ...       58 

V.  West,         .  .         ,386 

Gretton  v.  Haward,  79,  92,  96,  97,  285 

Grey  v.  Grey,     .         .  .         .102 

Griffith  V.  Ricketts,     .  31,  407,  414 

Grimstone,  Ex  parte,  .         .     291 

V.  Gaunt,  .  .         .285 

Grinnell  v.  Cobbold,  .  .         .       23 

Grugeon  v.  Gerrard,  .  .         .     165 

Gwydir,  Lord,  Ex  parte,  .         .     293 

Habershon  v.  Blurton,  .         .     242 

Hale  V.  Hale,       .         .  .      243,  354 

Halford  v.  Gillow,      .  .         .198 

Hall,  Ex  parte,  .         .  .      292,  293 

Hall  &  Hinds,  Re,       .  .         .     192 

r.  Hall,         .         .  .         .243 

V.  Hardy,      .         .  .         .192 

V.  Hill,        102,  103,  104,  105,  106 

V.  Jenkinson,        .  .         .     354 

V.  Laver,      ....     387 

Hallett  V.  Bousfield,   .  .         .271 

Halliday's  Est..  Re,  .  .  .         .     284 

Halliwell  v.  Tanner,  .  .         .     264 

Halsey  v.  Halsey,        .  .         .     288 

Hambrook  v.  Smith,  ...         5 

Hamilton  v.  Houghton,  .         .     416 

t;.  Marks,     .  .  203,  205-6 

V.  Royse,     .  .         .     273 

•  V.  Watson,  .         .     179 

V.  Wright,  ...       59 

Hammond  v.  Messenger,  .         .     303 

Hampshire  v.  Bradley,  .         .       59 

Hampson  v.  Hampson,  .         .     377 

Hanby  v.  Robers,        .  ,         .     276 

Hansard  v.  Robinson,  .         .     168 

Hanson  v.  Keating,     .  .       48,  191 

Hardman  v.  Ellames,  .         .       17 

Harday  v.  Hawkshaw,  .         .136 

Hare  v.  Hale,       .         .  .         .243 

Hares  v.  Stringer,       .  .         .     318 

Hargrave  v.  Hargrave,  .         .       82 

Harland  v.  Binks,       ...       31 

V.  Emerson,  .         .     338 

Harman  v.  Jones,        .  .      218,  357 

Harmer  v.  Gooding,    .  .         .     320 

Harmood  v.  Oglander,  .     262,  378 

Harries  v.  Bryant,       ...       89 

Harris  v.  Davison,      .  .         .     132 

V.  Harris,         .  .         .     339 

Harrison  v.  Gurney,   ,  .         .     198 

V.  Heathorn,  .         .     242 

V.  Nettleship,  .         .     197 

Hart  V.  Alexander,      .  .         .173 

Hartwell  v.  Chitters,  .  .         .     256 

Harvey  v.  Harvey,       .  ,         .     320 

Hastings,  Ex  parte,    .  .         .     297 


TABLE  OF  ENGLISH  CASES. 


XXV 


Hatch  V. ,     . 

Hawkins,  Ex  parte,    . 
V.  Gathercole, 
V.  Hawkins, 
V.  Lawse, 
Hayes,  Ex  parte, 
Haynes  v.  Forshaw, 
Hayward  v.  Purssey, 
Hayteer  v.  Trego, 
Head  r.  Egerton, 
Healey  v.  Jagger, 
Heathcote  v.  Hulme, 
Heighing  v.  Grant, 
Heming  v.  Swinnerton, 
Henderson  v.  Eason, 
Henley  v.  Stone, 
Hepworth  v.  Heslop, 
Hercey  v.  Ferres, 
Hercy  v.  Birch,  . 
Hereford  v.  Kavenhill 
Herring  v.  Cloberry, 
Hertfort  v.  De  Zichi, 

Re, 
Hewitt  t'.  Loosemore, 
Hickling  v.  Boyer, 
Higgins  r.  Joyce,   , 
Higginson  v.  Clowes, 
Hill  V.  Barclay,  . 
V.  CroUs, 
V.  Gomme,  . 
V.  Thompson, 
Hills  V.  Downton, 
Hilton  V.  Granville, 
Hindson  v.  Weatherill. 
Hindman  v.  Taylor, 
Hine  t>.  Dood, 
Hinves  v.  Hinves, 
Hitchcock  V.  Giddings, 
Hitchens  v.  Coflgreve, 
Hithcox  V.  Sedgwick, 
Hobhouse  v.  Courtenay, 
Hobsun  i".  Blackburn, 

V.  Ferraby, 
Hockley  v.  Bantock, 
Hodgens  r.  Hodgens, 
Hodle  V.  Healey, 
Hodgson  V.  Shaw, 
Hodson  V.  Ball, 
Hoggart  V.  Cutts, 
Holder  i'.  Chamburry, 
Holdich  r.  Holdich, 
Holdin  V.  Durbin, 
Holford  V.  Phipps, 
Holland  v.  Baker, 
Holloway  v.  HoUoway, 

Millard, 
Holmes  v.  Baddeley, 
V.  Coghill, 
Re, 
Holt  V.  Dewell,  . 


218, 


415, 


.  351 
.  135 
7 
.  320 
.  255 
.  286 
.  251 
,  303 
.  73 
.  160 
.  370 
60 
G4 
.  193 
.  232 
.  318 

261,  390 
15 
82 

138,  140 
6,  399 
.  316 
.  358 
.  151 
.  261 
.  179 
.  172 
.  109 
82 
.  283 
.  218 
.  101 

3r)6,  357 

184,  248 
19,  339 
.  153 
.  57 
.  IgS 

321,  409 
.  157 
.  324 
.  277 
.  289 
.  125 
49,  288 
.  119 
.  269 

416,  417 

.  204 

.  238 

94 

.   39 

59 

.  415 

.  217 

.  147 

7 

.  100 

.  292 

.  101 


Holyladd,  Ex  parte,    .         .         .292 

Hood  V.  Pimm 372 

Hooper  ».  Brodrick,    .         .         .218 

Ex  parte,  .  .  123,  124 
Hope  V.  Hope,  .  .  .  .24 
Horlock  V.  Smith,  .  .  .119 
Horncastle  v.  Charlesworth, 

230,  231,  232 

Horner's  Est.,  Re,       .         .         .     136 

Hoste  V.  Pratt,    .         .         .         .287 

Houghton,  Ex  parte,  ...       33 

V.  Houghton,     .         .     245 

Houlditch  V.  Collins,  .         .         .134 

V.  Donegal,        .         .     410 

Housefield,  Ex  parte, .         .         .123 

Hovenden  v.  Annesley,      63,  176,  228 

How  V.  Broomsgroove,        .         .     200 

V.  Vigues,  ....     120 

Howard  v.  Digby,        ...       46 

V.  Harris,  .  .  .112 
Howden  v.  Rogers,  .  .  .  360 
Howe  V.  Dartmouth,  Lord,  .  57 
Howell  V.  George,  .  .  .21 
Hudson  V.  Maddison,  .  .  .211 
Hughes  V.  Fades,         .         .         .     372 

r.  Garner,      .         .         .     397 

V.  Stubbs,       .         .  31,  80 

Huguenin  v.  Basely,  .  176,  185,  354 
H ungate  v.  Gascoyne,  *  .417 
Hunt  V.  Penrice,  .         .         .     338 

Hunter  v.  Atkins,  .  .  .  185 
V.  Daniel,  ...  54 
Hurst  V.  Beach, .  .  .  103,  104 
Hutchinson  v.  Sheperton,  .  .  192 
Hyde  v.  Whitefield,     .         .         .360 

Ibbetson  v.  Ibbetson, .  .  .  265 
Incorporated  Society  v.  Richards, 

69,  75 
Inge,  Ex  parte,  ....  75 
Inman  v.  Whitney, 
Innes  v.  Jackson, 
V.  Sayer,  . 
Ireson  v.  Denn,  . 
Irnham  v.  Child, 
Irvin  V.  Young,  , 


Jack  V.  Burnett, . 

Jackman  v.  Mitchell, 

Jackson  v.  Leaf, 
t'.  Petrie, 
V.  Stopherd, 

Jacob  r.  Lucas,  . 

Jacobs  V.  Richards, 

Jacques  i'.  Chambers 

James  v.  Dean,  . 
Ex  parte, 

Janson  r.  Solarte, 

J.  C,  Ex  parte,  . 

Jefferys  i'.  Jeflferys, 


14 
174 

97 
165 
170 
227 

71 
180 
198,  260 
360 
240 
302 
183 
265 

60 

59 

9 

280 

78 


XXVI 


TABLE  OF  ENGLISH  CASES, 


Jefferys  v.  Smith,        .      247, 

354,  356 

Jefferyes  v.  Purday,    . 

.     215 

Jeffs  I'.  Wood,     . 

.     105 

Jenkins  v.  Brj-ant, 

.     385 

V.  Cross, 

.     412 

V.  Hilles, 

.       84 

V.  Parkinson, 

.    81,  360 

Jennings  v.  Broughton, 

,     176 

V.  Patterson, 

.     258 

Jervis  v.  White, . 

179,  351 

Jervoise  v.  Northumberland, 

Duke 

of,     . 

42,  84 

v.  Silk, . 

.     287 

Jessop  V.  Watson, 

.     140 

Jew  V.  Wood, 

.     205 

Jodrell  V.  Jodrell, 

.        45 

Johnson  v.  Child, 

.     264 

V.  Compton,. 

.     257 

V.  Curtis, 

.     226 

V.  Johnson,  . 

48,  90 

V.  Legard,     . 

146,  147 

Johnston  t'.  Beattie,   .       281 

282,  291 

V.  Rowlands, 

.       31 

Jolland  V.  Stainbridge, 

.      155 

Jones  V.  Alephsin, 

'    .     361 

V.  Beach, 

172,  173 

V.  Gilham, 

.     206 

V.  Goodrich,     . 

.     354 

V.  Howells, 

.     415 

V.  Jones,  .         53,  161 

162,  270 

V.  Kearney, 

.     176 

V.  Lane,   . 

.     174 

V.  Morgan, 

.     105 

V.  Mossop, 

.     223 

V.  Noy, 

.     243 

V.  Pugh,  . 

6 

V.  Smith, . 

159,  165 

V.  Tanner, 

.     250 

John  V.  Morshead, 

230,  231 

Joy  V.  Campbell, 

58 

Joyce  V.  De  Moleyns,  . 

.     162 

Kater  v.  Roget,  . 

93,  94 

Kay  V.  Marshall, 

218,  340 

Keeble,  Ex  parte. 

.     287 

Keeley  v.  Hooper, 

.     393 

Kekewick  v.  Manning, 

53,  55,  80 

Kelly  V.  Hooper, 

.     392 

V.  Jackson, 

6 

Kemble  v.  Farren, 

.     108 

V.  Kean, 

82,  207 

Kemp  V.  Pryor,  . 

.      179 

Kendall,  Ex  parte. 

.     272 

V.  Granger,  . 

.       67 

Kennedy  v.  Green, 

16,  157 

V.  Lee, 

85 

Kennington  v.  Houghton,  . 

.     222 

Kent  V.  Burgess, 

,     288 

V.  Jackson, 

.     320 

Keppell  V.  Bailey, 

.     152 

Kerr  v.  Dungannon,  Lord, .         .     159 

V.  Rew,        ...        20,  314 

V.  Wauchope,      ...       97 

Kerrich  v.  Bransby,    .         .         .     250 

Keys  V.  Williams,       .         .         .     125 

Kidd  V.  Cheyne,  .         .         .419 

Kidney  v.  Coussmaker,       .        95,  147 

Kilminster  v.  Pratt,    .         .         .409 

Kimberly  v.  Jennings,         .         .     207 

Kincaid's  Trust, .         ...       48 

King  V.  Mullin,   ....       59 

V.  Daccombe,      ...       50 

V.  Denison,  ...       33 

V.  Hamlet,  .         .      186,  187,  191 

V.  Smith,    .         .         .         .114 

V.  Wilson,  ....       88 

King  of  Sicilies  v.  Wilcox,         .     2,  3 

Kirby  v.  Barton,  .         .         .260 

V.  Marsh,  ....       61 

Kirk  V.  Eddowes,         .         .      103,  104 

Kirby  Ravensworth  Hospital,  Ex 

parte,      .....       75 

Kirwan  v.  Daniel,        ...       73 

KnatchbuU  v.  Fearnhead,  .         .25  7 

V.  Grueber,       .  87,  90 

Knight  V.  Boughtoq,  .         .  29,  31 

V.  Davis,  .         .         .265 

V.  Knight,        .         .         .319 

V.  Majoribanks,        .         .       61 

V.  Waterford,  .         .         .236 

Knollys  i>.  Shepherd, .         .         .     141 

Knott  V.  Cottee, ....       31 

Ex  parte,  .       161,  162,  164 

Knox  V.  Symonds,       .         .         .     193 

LadyThynn  w.  Earl  Glengall,  104,  105 

Lacey,  Ex  parte,         .         .  59,  61 

Lake  v.  Skinner,         .         .         .     373 

Lambert  v.  Hutchinson,      .         .     302 

Lancashire  v.  Lancashire, .         .     375 

Lancaster  v.  Evors,     .         .  10,  17 

Re,     .         .         .         .     301 

Lanchester  v.  Thompson,  .         .     321 

Lane' V.  Dighton,  .         .        64,  144 

V.  Newdigate,     .         .         .218 

V.  Paul,      .         .         .         .350 

Re, 286 

Langley  v.  Fisher,  153,370,  406,  407 
LangstafiFe  v.  Fenwick,  .  .112 
Langston  v.  Ollivant,  .         .       56 

V.  Walker,  ...  56 
Langton  v.  Horton,  .  55,  149,  203 
Lansdowne  v.  Lansdowne,  .     376 

Larkins  v.  Paxton,  .  .  261,  390 
Latimer  v.  Neale,  .  .  15,  17 
Law  V.  Hunter,  ....  3G3 
Lawless  v.  Shaw,  ...  31 
Lawrence  v.  Smith,  .  .  .  216 
Lawton  v.  Campion,  .  .  .  189 
Leaf  V.  Coles,      .         .         .     243,  292 


TABLE  OF  ENGLISH  CASES, 


XXVll 


Leathart  v.  Thorne,    .         .         .     320 

Lechmere  v.  Brasier,  .         .         .     372 

Lee  V.  Lee,  .         .      407,  409,  416 

V.  Milner,     .         .         .         .212 

V.  Pain,         ....     103 

V.  Park,        .         .         .         .260 

V.  Reed,        .         .         .         .     4, 5 

V.  Willcox,  .         .         .384 

Leeds  v.  Amherst,      .         .         .     209 

V.  Duke  of,  V.  New  Radnor,  238 
Le  Grand  v.  Whitehead,  .  .  388 
Leith  I'.  Irvine,  ....  112 
Lenaghan  v.  Smith,  .  .  .  318 
Lench  v.  Lench,  .         .         .     144 

Le  Neve  v.  Le  Neve, 

151,  153,  157,  158 
Leo  V.  Lambert, 
Leonart  v.  Baker, 

V.  Leonard, 
Lewellyn  v.  Cobbold, 
Lewis  V.  Davies, 

V.  Fullarton, 

V.  Hillman, 

V.  Langdon, 

V.  Maddocks, 

V.  Zouche, 
Lichfield  v.  Bond, 
Liddell  v.  Norton, 
Lightfoot  V.  Heron, 
Lingard  v.  Bromley, 
Lingen  v.  Sowray, 
Lister  v.  Turner, 
Litchfield  v.  Ready, 
Liversey  v.  Liversey, 
Llewellyn  v.  Badely, 
Lloyd  V.  Jei\kins, 

V.  Johnes, 

V.  Mason, 

V.  Passingham 

V.  Spillets, 

V.  Wait,     . 

V.  Williams, 
Locke  V.  Colmau, 
Lockhart  v.  Hardy, 
Lockwood  V.  Fenton,  .         .     282 

Lodge  V.  Lyseley,  .  .  .  149 
London,  City  of,  v.  Mitford,  .  89 
V.  Perkins,  200,  201 
288,  289 


361 
151 
189 
180 

12 
215 

61 

246 

144 

315 

3 

12 
183 
268 
137 
125 
114 
387 
9,  15 
357 
1,  412 

49 
355 

35 
376 

49 
377 
117,  120,  264 


316,  41 


Long  V.  Long, 

V.  Storie,    . 

V.  Yonge,   . 
Longman  v.  Winchester, 
Lord  Aldborough  v.  Tyre, 
Lord  V.  Wightwick,    . 
Lorimer  v.  Lorimer,    . 
Loscombe  v.  Russell, 
Loveday,  Ex  parte,     . 
Lovell  V.  Hicks, 
Lovegrove  v.  Cooper, 
Low  V.  Carter,    . 


320 

321 

215 

186 

46 

232 

241 

293 

399 

253,  256 

.  257 


Lowe  w.  Williams, 
Lowes  V.  Lowes, 
Lowndes  v.  Cornford, 
V.  Davies,    . 
Ludlow,  Corporation  of,  v 

house, 
LufFkin  v.  Nunn, 
Lumley  v.  Wagner,     . 
Lumsden  v.  Fraser,     . 
Lund  V.  Blandshard,^ 
Lupton  V.  White, 
Lushington  v.  Boldero, 
Lyon  V.  Colville, 
Lyons  v.  Blenkin, 
Lyre  v.  Connell, 


Maber  v.  Hobbs,  .         .         .     373 

Macartney  v.  Graham,  .  .  168 
Macbride  v.  Lindsay,  .         .     320 

Macclesfield,  Earl  of,  v.  Davis,  .  92 
Maccubbin  v.  Cromwell,  .  .  58 
Mackenzie  v.  Johnston,  .  ,221 
V.  Robinson,  .  118,  120 
Mackinnon  v.  Stewart,  .  .  3.1 
Mackreth  v.  Symmons,  .  128,  129 
Macloud  V.  Annesley,  .         .     318 

Macnamara  v.  Maquire,  .  198,  359 
Magdalen  Coll.  v.  Att.-Gen.  ,  .  69 
Maitland  v.  Bateman,  .         .       56 

Malcolm  v.  Scott,  .  .  54,  413 
Maiden  v.  Fyson,  .         .        80,  392 

Malins  v.  Freeman,  ...  85 
Man  V.  Ricketts,  .         .      250,  410 

Mandeno  v.  Mandeno,  .         .     394 

Manser  v.  Jenner,  .  .  3S6,  357 
Manton  i>.  Moore,  .  .  .151 
Mare  v.  Malachy,  .  .  .317 
Margrave  v.  Le  Hooke,  .  .  165 
Marlborough  v.  Wheat,-  .  .  385 
Marrow,  Re,  ....  115 
Marsh  v.  Lee,  .  .  .110,  162 
Marshall  v.  Colraan,  .  .  241,  243 
V.  IloUoway,  .  .  287 
Martin  v.  Pycroft,  ...  87 
Martindale  v.  Booth,  .         .     151 

Martinez  v.  Cooper,  .  .  .  151 
Mason  v.  Bogg,  .       121,  261,  277 

Massey  V.  Banner,       .         .       58,221 
V.  Massy,         .         .         .     264 
V.  Parker,        .         .         44,  45 
Masterman  v.  Lewin,  .         .     206 

Matson  v.  Swift,  .         .         .139 

Matthews  v.  Brise,      ...       58 
V.  Dana,      .         .         .     380 
Maundrell  v.  Maundrell,     .         .     160 
Maxwell  v.  Maxwell,  .         .       93 

V.  Mountacute,      .         .     Ill 
Mayhew  v.  Crickett,  .         .         .     106 
Mayor,    &c.,   of  Basingstoke   v. 
Ld.  Bolton,     .        .         .     237,  238 


12 

94 

.     201 

9 

rreen- 

63,  76 

153,  312 

.     207 

.     423 

.     211 

.     222 

.     316 

.     255 

280,  283 

,     206 


XXVlll 


TABLE    OF    ENGLISH    CASES. 


16 


55, 


45 
80 
.  '  CO 
.  T42 
.  165 
.  268 
.  146 
1,  205,  384 
.  321 


wer, 


218 
351 


McCalmont  v.  Rankin,         ,      176,  303 
McDermot  v.  Kealy,    .         .         .     397 
McDougal,  JSx  parte,  .         .         .     293 
McFadden  v.  Jenkyns,         .  28,  54,  80 
Mcintosh  V.  Great  Western  Rail- 
way,       .        ......       24 

MeMahon  v.  Burchell, 

21,223,232,305,382 
Medley  v.  Horton, 
Meek  u.  Kettlewell,     . 
Melland  v.  Gray, 
Mellersh  v.  Bridger,    . 
Mergrave  v.  Le  Hook, 
Merryweathcr  v.  Nixon, 
Metcalfe  v.  Pulvertoft, 
Meux  V.  Bell, 

V.  Maltby, 
Mexborough,  Earl  of,  v.  Be 
Meyer  v.  Montrio, 
Micklethwaite  v.  Atkinson 
Middleton  v.  Dodswell, 
V.  Middleton, 
Mill  V.  Hill, 
Milland  v.  Gray, 
Millar  v.  Taylor, 

V.  Craig,  . 
Miller  v.  Gow,    . 

V.  Warmington, 
Miles  I'.  Durnford, 
Miligan  v   Mitchell,    . 
Millington  v.  Fox, 
Mills  V.  Farmer, 
V.  Mills,      . 
Milner  v.  Harewood,  . 
Milnes  v.  Davison, 
Mirehouae  v.  Scaife,  . 
Mitchell  V.  Hayne, 
Milford  V.  Reynolds,  . 
Moggridge  v.  Thackwell, 
Mole  V.  Mansfield, 
Molton  V.  Camroux,    . 
Mondey  v.  Mondey,     . 
Money  v.  Jordan, 
Monro  v.  Taylor, 
Monteith  v.  Taylor,     . 
Montfort,  Lord,  v.  Cadogan 
Moodie  v.  Bannister, 
Moons  V.  De  Bernales 
Moore  v.  Crofton, 

V.  Frowd, 

V.  Prior,    . 

V.  Usher, 
Moores  v.  Choat, 
Morgan  v.  Annis, 
V.  Goode, 
V.  Shaw, 
Morley  v.  Bridges, 
Morrett  v.  Paske, 
Horice  ».  Durham,  Bishop  of, 
V.  Langham,   . 


.  353 

263,  274 
.  191 
.  60 
.  213 
.  227 
.  382 
.  237 
.  251 
18 

392,  393 
.  71 
.   57 

289,  413 
.  21 
.  275 
.  205 
.  67 
71,  73 
.  231 
.  183 

121,  285 

196,  356 
.  88 
.  409 
,  Lord,  55 
.  314 
60,  376 
.  77 
61 
.  260 
.  205 

125,  142 
.  248 
.  356 
.  352 
.  Ill 

163,  165 
.  67 
.     376 


Morice  v.  Swabey, 
Morrison  v.  Moat, 
Morrell  v.  Wooten, 
Morris  v.  McNeil, 
.  V.  Morgan, 
V.  Morris, 
Morrison  v.  Arnold, 
Mortimer  v.  Eraser, 

V.  Shortall 
Mortlock  V.  Buller, 
Moss  V.  Baldock, 
Mossop  V.  Eadon, 
Mostyn  v.  Spencer, 
Motlej--  V.  Downman, 
Mozley  v.  Alston, 
Muckleston  v.  Brown 
Muddle  V.  Fry,    . 
Mullock  V.  Jenkins, 
Munch  V.  Cockerell, 
Mundy  i;.  Jolifife, 
V.  Mundy, 
Munoz  V.  De  Tastet, 
Murless  v.  Franklin, 
Murray  v.  Barlee, 
V.  Elibank, 
V.  Shadwell 
V.  Vipart, 
V.  Walter, 
Mutter  V.  Chanwell, 


14 
216 

15 
360 
334 

25 

25 
335 
171 
55,  81 
396 
168 
368,  370 
217 
321 

33 
376 
320 
318 

87 
234 
322 
162 

46 
48,  49 
364 
324 

15 
413 


31 


il. 


Nairn  v.  Prowse,  .  .  .  129 
Nash  V.  Morley,  .         .         .67 

Navulshaw  v.  Brownrigg,  .  .  222 
Naylor  v.  Winch,  .  .  189,  190 
Neale  v.  Neale,  ....  189 
Neate  v.  Marlborough,  Duke  of, 

130,  262 
Nedby  v.  Nedby, 
Nelson  v.  Bridges, 

V.  Bridport, 

V.  Duncombe, 
Nelthorpe  v.  Holgate. 
Nesbit  V.  Meyer, 

Re,  . 
Newburgh  v.  Newburgh,     . 
Newby  v.  Reed,  . 
Newcastle,  Duke  of,  v.  Lincoln 

Countess  of,    . 
Newcomb  v.  Bonham, 
Newlands  v.  Paynter, 
Newton  v.  Hunt, 
Nichols  V.  Chalie, 
I'.  Roe,  . 
Nicholls  V.  Maynard, 
Nicholson  v.  Hooper, 

V.  Wordsworth, 
Nightingale  v.  Goulborn, 
Nokes  V.  Seppings, 
Norcutt  V.  Dodd, 
Norris  v.  Wilkinson,  . 


35] 

413 

.383 

.   290,  291 

84,  91,  177,  315 

82 

292 

172 

269 


42 
112 
149 
187 
193 
193 
109 
150 
38 
67 
350 
148 
125 


147, 


TABLE    OF    ENGLISH    CASES, 


XXIX 


Not'tham  Bridge  Companj-  t. 
Southampton  Railway  Com- 
pany,      ....     376,  377 

Norway  v.  Rowe,         .         .         .11 

Nunn  I'.  Harvey,  .         .         .     286 

Nurse  v.  Lord  Seymour, 


O'Connor  v.  Spaight, 
Oglander  v.  Oglander, 
Okill  V.  Whittaker,     . 
Oldham  v.  Eboral, 
Oliver  v.  Richardson, 
Omerod  v.  Hardman, 
Omrod  v.  Huth, 
Onslow  V.  Wallis, 
Ord  V.  Noel, 

V.  White, 
Osborne  r.  Harvey, 
Ostell  t'.  Le  Page, 
Ottley  V.  Pensam, 
Overton  v.  Bannister, 
Owen  i".  Howman, 
Owens  r.  Dickinson, 
Oxendon  v.  Compton 

Oxford  V.  Rodney, 


Lord, 
143, 


Padbury  v.,  Clark, 
Padwick  v.  Hurst, 

V.  Stanley, 
Page  V.  Cox, 
Re,     . 
Pain  V.  Smith,     . 
Palin  V.  Hathercote, 
Palmer  v.  Neave, 
Parker  v.  Fairlie, 

V.  Housefield, 
Parke's  Charity,  In  re, 
Parkhurst  v.  Lowton, 
Parkin  v.  Thorold, 
Parr  v.  Attorney-General 
Parrott  v.  Sweetland, 
Partridge  v.  Usborne, 
Pastey  v.  Freeman, 
Paterson  v.  Scott,       .      263 
Pauli  t'.  Von  Melle, 
Paxton  V.  Douglass, 
Peace  v.  Hains, 
Peachy  v.  Somerset, 


Peacock 


Burt, 

V.  Evans, 

V.  Peacock, 

Highfield, 

Loman, 


Peake  v. 

Pearce  v 

Pearne  v.  Lisle,  . 

Pearse,  Ex  parte, 
I'.  Green, 
V.  Hewitt, 
V.  Pearse, 

Pearson,  Re, 


.     224 

39 

170,  172 

.     415 

.     235 

84 

.     178 

32.  50 

55 

.     356 

.       87 

.     260 

385,  386 

.     176 

.     352 

46,  258 

291,  297 
.     265 

96 

222,  226 
.  222 
.  246' 
.  301 
.  125 
.  213 
.  180 
12 

123,  125 
.  76 
4,  370 
.  88 
.  310 
.     128 

417,  418 
.     178 

275,  276 
.  205 
.  259 
.     106 

107,  108 
.  161 
.  187 
.  241 
.  174 
.  276 
.  360 
.  124 
57,  222 
.  250 
7 

295,  298 


250 


36,  41 


Pedley  v.  Goddard, 
Pegg  V.  Wisden, 
Peile  V.  Sloddart, 
Pelham  v.  Hinder, 
Pemberton  v.  Pemberton 
Penfold  V.  Nunn, 
Pennell  v.  Deffell, 
Penny  v.  Goode, 

V.  Turner, 

V.  Watts, 
Perkin  f>.  Stafford, 
Perkins  v.  Bradley, 
Perry  v.  Barker, 

V.  Phelips, 

V.  Truefit, 

V.  Walker, 

?•.  Whitehead, 
Petre  v.  Espinasse, 
Pettit,  Ex  parte, 
Phelps  V.  Prothero, 
Philanthropic  Society  v.  Kemp, 
Phillipo  V.  Mannings, 
Phillipott's  Charity,  In  re, 
Phillips   t'.   Buckingham,  Duke 
of,   . 
V.  Clarke, 
V.  Evans, 
Ex  parte, 
V.  Phillips, 
V.  Worth, 
Pickering  v.  Ely,  Bishop  of, 

V.  Pickering, 
Pickup  r.  Atkinson, 
Pidcock  V.  Bishop, 
Pierson  v.  Shore, 
Piggin  V.  Cheetham, 
Pilling  V.  Armitage, 
Pinkett  i-.  Wright, 
Pinkus  I'.  Peters, 
Pitt  V.  Cholmondeley, 
Playfair    v.    Thames 
Railway  Company, 
Plowden  v.  Hyde, 
Plummer  v.  Wildman, 
Plunket  V.  Lewis, 

V.  Penson, 
Policy  V.  Seymour, 
Pooley  V.  Budd, 
Pope  V.  Onslow, 
Portarlington,  Lord  v. 
Postlethwaite  v.  Blythe, 
Pott  V.  Gailini,    . 
Potter  V.  Waller, 
Power  V.  Walker, 

V.  Whitmore, 
Pownal  V.  Ferrand, 
Powys  V.  Blagrave, 

V.  Mansfield, 
Praed  v.  Hull,     . 
Prendegast  v.  Eyre, 


193 

88 

17 

221 

378 

18 

321 

15 

30 

261 

333 

391 

120 

419 

217 

198 

98 

146 

126 

346 

277 

251 

76 


177 

409 

17,  192 

285, 297 

222,  245 

.     199 

82,  85 
57 
57 

179 

143 

113 

150 

.      242,  244 

.      388,  418 

.     227 

Junction 

.  196, 359 
.  173,  174 
271 
105 
256 
136 

83,  91 
165 
195 
115 
260 

15 
215 
271 
269 
208 

98 
113 
117 


Sonlby, 


XXX 


TABLE  OF  ENGLISH  CASES. 


Prentice  v.  Phillipa,  . 

Preston  v.  Grand  Collier  Dock  Co. 


350 
321 


Price  V.  Berrington, 

V.  Carver, 

t),  Griffith, 

V.  Price,    . 
Pride  v.  Fooks,  . 
Prince  Albert  v.  Strange, 
Prince  i'.  Heylin, 
Pritchard  v.  Draper,  . 

V.  Fleetwood, 
Pritt  V.  Clay,      . 
Prodgers  v.  Langliam, 
Prosser  v.  Edmonds, 
Prowse  V.  Abingdon, 
Pruen  v.  Lunn,   . 
Pulsford  V.  Richards, 
Pulteney  v.  Darlington, 

V.  Warren,  . 
Pulvertoft  V.  Pulvertoft 
Purcel  V.  McNamara, 
Pusey  V.  Desbouvrie, 
Pye,  Ex  parte,    . 
Pym  V.  Lockyer, 
Pyrke  v.  Waddingham, 

Quarrell  v.  Beckford, 
Queen's  College,  In  re, 


176,  183,  303 

125,  253 

77,  88 

183 

63 

213 

233 

413 

353 

189 

146 

54 

276 

406 

176,  177 

.     137 

229,  234,  235 

146,  153 

.     386 

.       96 

80,  98,  104 

98,  104 

.       84 


Rabbett  v.  Squire,  .  .  .343 
RadclifiFe,  Ex  parte,  .  .  .293 
Raine  v.  Cairns,  .         .         .     236 

Rajah,  &c.,  v.  E.  I.  Co., 
Ramsbottom  v.  Freeman,  .  .  355 
Randall  v.  Randall,  .  .  .  245 
V.  Russell,  ...  60 
Ranger  v.  Great  Western  Railway, 
222, 


119 
75 


224 

260 

218 

64 

103 

358 

173 

360 

353 

106,  268,  269 

.     142 


223, 


Ranken  v.  Harwood, 

V.  Huskisson 
Raphael  v.  Boehm, 
Raven  v.  Waite, 
Rawson  v.  Samuel, 
Rawstone  v.  Parr, 
Raynes  v.  Wyse, 
Reed  v.  Harris,   . 
Rees  V.  Berrington, 

V.  Keith, 

Reeve  v.  Attorney-General,         .       73 
Reeves  v.  Baker,         .  29,  31,  306 

V.  Glastonbury  Canal 

Company,  .  .  .  113 
Reg.  V.  Smith,  ....  282 
Reid  V.  Shergold,  .  .  .  100 
Rendall  v.  Rendall,  .  .  .  353 
Rennie  v.  Ritchie,  ...  44 
Rex  V.  Canterbury,  Bishop  of,  .  75 
V.  Greenhill,  .  .  .  280 
Reynell  v.  Sprye,  6,  14,  175,  176,  177 
Reynolds  v.  Pitt,         .         .        .109 


Rice  V,  Rice,        ....     160 
Rich  V.  Cockell,  ...       93 

Richards,  Ex  parte,    .         .         .     292 
V.  Attorney-General  of 

Jamaica.  .         .     136 

V.  Platel,     .         .         .115 
Richardson  v.  England,  Bank  of, 

244,  351,  352 


V.  Eyton, 
V.  Hastings, 
V.  Larpent, 
V.  Merrifield, 
V.  Smallwood, 
Rico  V.  Gaultier, 
Rider  v.  Kidder, 
Ridgway  v.  Roberts,  . 
Ripley  v.  Waterworth, 
Ripon,  Earl  of,  v.  Hobart, 
Roberts,  Ex  parte, 

V.  Denny,     . 
V.  Ebenhart, 
V.  Marchant, 
V.  Tunstall, 
V.  Walker,    . 
Robertson  v.  Lubbock, 
V.  Shewell, 
Robinson  v.  Briggs,    . 
V.  Byron,     . 
V.  Geldard, 
V.  Governors,  &c 


I'.  Lamond, 

r.  Milne r 

V.  Page, 

V.  Rosher,   . 

V.  Wheelwright, 
Rochdale  Canal  Co.  v.  King, 
Rochford  v.  Fitzmaurice, 

V.  Hackman, 
Rock  V.  Cooke,   . 
Rocke  V.  Hart,    . 
Rodgers  v.  Marshall, 

V.  Nowhill,   . 
Rogers  v.  Earl,  . 
Rolfe  V.  Peterson, 
V.  Rolfe,    . 
Rolt  V.  Hopkinson, 
Rose  V.  Cunynghame, 
Ross  V.  Ross, 
Ross's  Trust,  In  re,     . 
Rouse' Est., 
Row  V.  Dawson, 
Rowland  v.  Morgan,   . 
Rowley  v.  Adams, 
V.  Rowley, 
Ruffin,  Ex  parte, 
Rumford  Market  Case, 
Rundellv.  Murraj-^, 
Russell  V.  Ashbj', 
V,  Jackson, 


136,  138,  263 

6 

387 


189 

241,  322 

,     322 

.     288 

.     147 

.     360 

35,  130 

.     210 

.     245 

.     211 

.     292 

82,  88 

241,  247 

.     399 


62, 


186 
265 
19 
15 
184 
218 
277 


98, 


84 
142,  392 

46 
211 

42 
42,  282 
298 

63 
101 
217 
170 
108 

82 
110 
141 
351 

45 
103 

54 

42 
383 
184 
240,  244 

60 
215 
361 

76 


TABLE     OF    .ENGLISH    CASES. 


XXXI 


Russell  0.  Russell, 

123 

Shelley  v.  Westbrooke,      '. 
Shepherd  v.  Morris,    . 

283 
12 

Sadler  &  Jackson,  Ex  parte. 

180 

V.  Mouls,     . 

63 

Sainsbury  v.  Jones,    . 

81 

Sherman  v.  Sherman, 

227 

St.  Asaph  V.  Williams, 

235 

Sherwood  v.  Sanderson,  290, 

291,  293 

St.  John,  Lord,  v.  St.  John,  Lady,     45 

Shiphard  v.  Lutwidge, 

255 

Salisbury  v.  Hatcher, 

32,  89 

Short  V.  Lee, 

377 

Salmon  v.  Cutts, 

61,   184 

V.  Mercier, 

6 

V.  Randall,     . 

212 

Shrewsbury,  &c.,  R.  R.  v.  London, 

Salomons  t).  Laing,     . 

320 

&c.,  R.  R.,  . 

, 

356 

Salvidge  r.  Hyde, 

310 

Shuttleworth  v.  Howarth, 

390 

Salway  v.  Salway, 

57 

Sidmouth  v.  Sidmouth, 

33,  102 

Sampson  v.  Pattison, 

126 

Sidney  v.  Shelley, 

33 

Samnell  f.  Howarth,  . 

106 

Sieveking  v.  Behrens, 

20 

5,  206 

Sanders  v.  Rodway,    . 

45 

Silk  V.  Prime,            .         243, 

254,  257 

San  don  v.  Hooper, 

111 

Simmonds  v.  Leonard, 

245 

Sanford  v.  Morrice,     . 

31 

3,  403 

V.  Palles,  . 

31 

Saunders  v.  Amnesly,  Lord, 

190 

V.  Rose,     . 

138 

V.  Smith, 

215 

Simonds  i\  White, 

271 

Savage  i'.  Brocksopp, 

21 

Simpson  v.  Howden,  Lord, 

174 

Saville  v.  Saville, 

289 

V.  Vaughn,  . 

172 

Sawyer  v.  Birchmore, 

262 

Simson  v.  Jones,     . 

285,  289 

V.  Mills, 

303 

Skeats  v.  Skeats, 

102 

Say  V.  Creed, 

25 

1,  261 

Skeeles  v.  Shearly,     . 

130 

Scales  V.  Collins, 

276 

Skinners'  Co.  v.  Irish  Society, 

353 

Scawin  v.  Scawin, 

102 

Slaney  v.  Sidney, 

204 

Schneider  v.  Heath,    . 

179 

Sloan  V.  Cadogan, 

80 

Scholefield  v.  Heafield, 

253 

Small  V.  Atwood, 

144,  321 

Schoole  f.  Sail, 

117 

Smith  I'.  Beaufort, 

16 

Schreiber  v.  Creed,     . 

152 

V.  Clarke, 

177 

Schroder  v.  Schroder, 

94 

V.  Claxton, 

140 

Scoones  v.  Morrell,     . 

89 

V.  Clay,    . 

228 

Scott  V.  Beecher, 

265 

V.  E.  I.  Company,     . 

8 

V.  Broadwood, 

19 

V.  Effingham,    . 

353 

I'.  Dunbar, 

392 

V.  Garland, 

145 

V.  Jones,  , 

255 

V.  Hurst, 

31,   132 

Scott  V.  Xicholl, 

317 

V.  Jeyes,  . 

243,  354 

Seaborne  v.  Clifton,    . 

162 

V.  Keating, 

31 

Sealey  v.  Laird, 

360 

V.  Mules,  . 

243 

Seddon  v.  Connell,      .      268 

,  30 

3,  319 

V.  \ethersole   . 

360 

Seely  v.  Jago,     . 

137 

V.  Pincombe,    . 

313 

Selby  ».  Jackson, 

183 

V.  Smith,  . 

302 

V.  Selby, 

275 

Smythe  v.  Smythe, 

356 

Sempler.  Birmingham  Railway 

317 

Soltau  V.  De  Held,      . 

211 

Seton  V.  Slade,  . 

.       90 

Somerset,  Duke  of,  v.  Cookson, 

92 

Shackell  v.  Macauley, 

310 

Southeast  R.  R.  Co.  v.  Brogd 

on 

220 

Shaftsbury  v.  Marlborough, 

55 

Southeastern  R.  R.  Co.  r.  Sub- 

Shakel v.  Marlborough, 

354 

marine  Telegraph  Co. 

309 

Shalcross  v.  Dixon,     . 

.     157 

South  Sea  Company  v.  Wymond- 

Sharp  V.  Carer,  . 

.     355 

sell,     .... 

176 

Sbarpe  v.  Scarborough, 

.     256 

Southey  v.  Sherwood, 

216 

Shaw  V.  Borrer, 

.     255 

Sowarsby  v.  Lacy, 

156 

Ex  parte, 

14 

Spain,  King  of,  v.  Machado, 

302 

V.  Lawless, 

31 

Speer  v.  Crawter, 

237 

V.  Lindsey, 

.     370 

Spence,  Re, 

28 

1,  283 

V.  Thackray,     • 

.       84 

Spencer  1'.  Birmingham  Railwaj 

r,    218 

Sheddon  v.  Goodrich, 

93 

Spencer's  Case, 

153 

Sheehy  v.  Muskerry,  . 

31 

0,  397 

Spickernell  v.  Hotham, 

258 

SheflBeld  v.  Buckingham,  Duche 

S3 

Spottiswoode  v.  Clarke, 

217 

of,    ...        . 

.     195 

Sproule  V.  Prior, 

275 

XXXll 


TABLE    OF    ENGLISH    CASES. 


Spry  V.  Bromfield,       .         .         .     376 

Stables,  Re,         ....     287 

Stacey  v.  Elph,  ....       37 

Stackhouse  v.  Barnston,     .         .     228 

Stafford  v.  Selby,        .         .         .122 

Stainton  v.  Carron  Co.,      .         .     301 

Stamps  V.  Birmingham,  &c.,  R.R.,  344 

Stanney  v.  Walmsley,         .         .     372 

Stanton  v.  Chadwick,  .  9,  17 

I'.  Hall,  ...       49 

V.  Hatfield,    .         .         .391 

Stapilton  V.  Stapilton,         .         .     188 

Stapylton  v.  Scott,      ...       84 

Steele  v.  Stewart,       ...         7 

Steflfe  V.  Andrews,      .         .      _  .     192 

Stephens  v.  James,     .         .         .     282 

Sterndale  v.  Hankinson,     .         .     2j8 

Stevens  v.  Keating,    .         .         .     218 

Steward's  Est.,  Re,     .         .         .136 

Stewart  v.  AUiston,    ...       90 

V.  Graham,    .         .         .360 

V.  Stewart,    .         .     189,  191 

Re,         ...         .     136 

Stickney  v.  Sewell,     ...       56 

Stiffe  V.  Everitt,  ...       49 

Stikenian  v.  Dawson,  .         .176 

Stileman  t".  Ashdown,         .         .     130 

Stiles  V.  Guy,      ....       56 

Stillwellr.  Wilkins,  .         .         .     354 

Stirling  v.  Forrester,  .         .     270 

Stocken  v.  Dawson,    .         .     386,  387 

V.  Stocken,    .         .         .     287 

Stocker  v.  Brockelbank,     .         .     239 

V.  Wedderburne,  .         .     207 

Stockleyt).Stockley,  .     189,  190 

Stocks  V.  Dobson,       ...       53 

Stone  V.  Compton,      .         .         .179 

V.  Godfrey,       .         .         .189 

V.  Theed,  ...       60 

Storer  v.  Great  Western  Railway,    83 

Story  r.  Johnson,        .         .     231,232 

V.  Lennox,         .         .         .     401 

V.  Windsor,        .         .         .     153 

Strathmore  v.  Bowes,         .         .     180 

Streatfield  v.  Streatfield,    .         .       94 

Stretch  «.  Watkins,     .         .         .287 

Strickland  v.  Strickland,  275,  340,  392 

Stroud,  Re,         ...         .     192 

Stroughill  V.  Anstey,  .         .     157 

Stuart  V.  Bute,  .         .        .         .12 

V.  Welch,  .         .         .202 

Stubbs  V. ,        .         .         ,     400 

Stunsbury  v.  Arkwright,  .  .  303 
Sturge  V.  Dimsdale,  .  .  .  277 
Sturgis  V.  Champneys,  .  .  48 
Suissa  V.  Lowther,  Lord,  .  103,  104 
Sumner  v.  Powell,  .  .  .  173 
Sutherland  v.  Briggs,  .         .       87 

Sutton  V.  Scarborough,      .         .     339 
&c.  Co.  V.  Hitchens,  .     347 


Sweet  V.  Benning,  .  .  .  215 
Swinborne  v.  Nelson,  .         .       17 

Sykes  v.  Sykes,  .         .         .         .217 

TaflF  Vale  Company  v.  Nixon,     .     222 

Talbot  V.  Ford,  ....       85 

V.  Scott,  -.       208,  210,  354 

V.  Shrewsbury,         .         .     282 

Tanner  v.  Dancey,       .         .     388,  390 

Taskerv.  Small,  .         .         .315 

Tatam  v.  Williams,    .         .173,  258 

Tatham  v.  Wright,      .         .         .250 

Taj'lor  V.  Barclay,       .         .         .     335 

V.  Field,  .         .         .242 

V.  Hay  garth     •         .       51,  139 

V.  Haylin,         .         .         .226 

V.  Heming,       .  '       •         .18 

V.  Plumer,        .         .         .     144 

V.  Pugh,  .         .         .182 

Re,  ....     284 

V.  Rundell,     .  .         12,  15 

V.  Settlement,  .         .136 

V.  Salmon.       .  •      .     184,  321 

V.  Shepherd,    .         .         .     197 

V.  Southgate,  .         .     400 

V.  Taylor,         33,  136,  138,  217 

Tebbs  V.  Carpenter,    .         .         63,  64 

Tenham  v.  Herbert,  .  .         .     200 

Teulon  v.  Curtis,         .         .         .126 

Thelluson  v.  Woodford,      .         43,  94 

Thetford  School  Case,         .         .      71 

Thomas  v.  Roberts,    .         .         .283 

V.  Dering,      ...       91 

V.  Oakley,      .         .         .210 

Re,         ...         .     297 

Thompson  v.  Derham,         .      198,  409 

Ex  parte,  .         .         .     409 

V.  Griffin,  .         .         .287 

V.  Harrison,       .         .     180 

V.  Heffernan,      .         .     185 

V.  Percival,        .         .173 

V.  Spiers,  ...       54 

V.  Williamson,  .         .     243 

Thornbrough  i;.  Baker,        .      111,112 

Thornett  v.  Haines,    .         .         .178 

Thornton  v.  Hawley,  .         .         .     136 

Thorpe  v.  Jackson,     .         .         .     172 

Thring  v.  Edgar,         ,         .         .338 

Thynne  v.  Earl  of  Glengall,     104,  105 

Tickel  V.  Short,  .         .         .227 

Tidd  V.  Lister,    ...        49,  263 

Timson  v.  Rarasbottom,      .         .     161 

Tindal  v.  Cobham,      .         .         .352 

Tipping  D.  Clark,         .         .         11,   14 

V.  Power,       .         .      261,  390 

Titley  v.  Davies,  .         .         .272 

Todd  V.  Gee 81 

Toldervy  v.  Colt,  .  .  .354 
ToUett  V.  Tollett,  .  .  .100 
Tombs  V.  Roch,  .         .       263,  265,  276 


TABLE    OP    ENGLISH    CASES, 


XXXIU 


Toralin  r.  Tomlin,      .         .         .363 

Tomlinson,  Ex  parte,         .         .     292 

V.  Harrison,     .         .     3G0 

Tonkin  v.  Lethbridge,         .         .     413 

Tonsou  V.  Walker,      .         .         .213 

Tooke  I'.  Hartley,        .         .         .120 

V.  Hastings,     ...       36 

Tooth  V.  Canterbury,  Dean  of,   .     317 

Topham  v.  Lightbody,     "^  .         .     382 

Toulmin  v.  Copland,'.         .      416,  417 

Toussaint  v.  Martinnant,    .         .     269 

Towuley  v.  Bedwell,  .         .         .     141 

V.  Dean,        .         .         .     206 

t'.  Sherborne,        .         .       58 

Townscnd  v.  Cams,    ...       67 

V.  Champernowne,      .       89 

Re,     .         .         .         .     115 

V.  Westacott,      .         .     147 

Townshend  Peerage  Case, .         .       24 

V.  Stangroom, 

85,  170,  171,  172 


Travis  v.  Milne,  . 
Tregonwell  v.  Sydenham, 
Trinity   House    Corporati 

Burge, 
Trotter  v.  Trotter, 
Tucker  v.  Wilson, 
Tuffnell  V.  Constable, 
Tulk  V.  Moxhay, 
Tullett  V.  Armstrong, 
Tullitt  V.  Tullitt, 
Turner  v.  Borlase, 

V.  Cameron's,  kc. 

V.  Harvey, 

V.  Morgan, 

V.  Turner 
Turton  v.  Benson, 
Twyford  v.  Trail, 
Twyne's  Case,  . 
Tyler  v.  Lake,  . 
Tyson  v.  Fairclough, 


Co. 


Underhill  v.  Horwood, 
Uniacke,  In  re,  . 
Upjohn  I'.  Upjohn, 
Urch  V.  Walker, 
Usborne  v.  Baker, 


Vandergucht  v.  De  Blaqu 
Vane  v.  Barnard, 
Vansandeau  v.  Moore, 
Vansittart  v.  Yansittart, 
Vaughan,  Ex  parte,    . 

V.  Vanderstegan 
Vernon  v.  Keys, 

V.  Thelluson, 
Vice  V.  Thomas, 
Vickers  i'.  Cowell, 
Vigers  v.  Audley,  Lord, 
c 


301 
33 


V. 


44. 


5 

383 

120 

106 

152 

46 

143 

317 

114 

178 

231 

287 

180 

387 

145,  147,  151 

45 

.  354 

.  173 
.  37 
,  407 
37,  38 
.  413 


230, 
194, 


.  47 
.  209 
.  321 
.  46 
.  109 
46,  176 
.  177 
,  260 
.  247 
35 
.  414 


Voyle  V.  Hughes, 
Vuillamy  v.  Noble, 


Wait,  Re, 242 

Wake  I'.  Conyers,  .  .  .  237 
Walburn  v.  Ingleby,  .  .  303,  317 
Waldron  v.  Sloper,  .  .  .  151 
Wales,  Princess  of,  v.  Liverpool, 

Lord, 18 

Walford  V.  Pemberton,        .         .     414 

Walker  v.  Armstrong,         .         .170 

V.  Fletcher,     .         .         .207 

V.  Jeffreys,      ...       88 

Re,  ....     288 

V.  Symonds,    .         .  56,  58,  62 

I'.  Wethereil,  .         .         .286 

V.  Woodward,  .         .       64 

Wallace  v.  Pomfret,    .         .      105,  106 

Wallwyn  v.  Lee,  .         .         -160 

Walmsley  v.  Child,     .         .         .168 

Walsh  V.  Gladstone,   .         .         .249 

Walsingham  v.  Goodriche,         .  7 

Walter  f.  Selfe,  .         .         .         .211 

Walworth  r.  Holt,       .         .      241,322 

Wahvyn  v.  Lee,  .         .         .         .162 

Warburton  v.  Storr,   .         .         .     ^2 

Ward  V.  Audland,       ...       80 

V.  Baugh,  ...       96 

Warde  v.  Warde,         .         .         .    6,  7 

Ware  v.  Polhill,  .         ...     285 

Warner  v.  Baynes,       .         .         •     230 

Warren  v.  Richardson,        .         .       87 

Wasson  v.  Waring,     .         .         .     188 

Waterford  t;.  Knight,  .      378,  414 

Waters  v.  Bailey,        ...       60 

V.  Groom,        ...       61 

V.  Mynn,  .         .         .176 

V.  Taylor,        .         .      243,  354 

Watkins  v.  Cheek,      .         .         .156 

Watts  V.  Girdlestone,  .         .       63 

Re, 293 

Way  V.  Bassett,  .         .         .173 

Wcall  V.  Rice,     ....     105 

r.  West  Middlesex  Water 

Works,      .         .         .201 
Weaver,  Re,        .         .         .         .199 
Webb  V.  Dire.  Lond.  and  Ports- 
mouth R.  R.      .         .       84 
V.  Manchester  and  Leeds 

Railway,   .         .         .211 

Re, 292 

V.  Shaftesbury,  Lord,       .     285 
V.  Wools,  .         .         .31 

Webber  v.  Hunt,  .  .  .118 
Webster  v.  Webster,  ...  45 
Wedderburn  v.  Wedderburn,  62,  246 
Wedgewood  v.  Adams,  .  84,  85 
Welch.  Re,  .         .         .         .286 

Wellesley's  Case  .  .  .326 
Wellesley  v.  Beaufort,      282,  283,  288 


53,    80 
.     223 


XXXIV 


TABLE     OF    ENGLISH    CASES, 


Wellesley  v.  Wellesley, 

36,  209,  281,  301,  334,  412 

Wellings  v.  Cooper,    .         .  .     224 

West  V.  Reid,      .         .         .  .159 

V.  Retford,  In  re,         .  .       76 

V.  Shuttleworth,         .  .       68 

V.  Smith,    .         .         .  •  .    397 

Westby  v.  Westby,      .         .  .189 

Westcott  V.  CuUiford,          ,  .392 

AVestmeath  v.  Salisbury,    .  .       42 

Wetherell  V.  Collins.    '      .  .115 

Ex  parte,    .         .  .124 

Whaley  v.  Dawson,     .         .  .     310 

Wharton  v.  Durham,  Earl  of,  104,  105 

V.  Whartqn,           .  .11 

Whatman  v.  Gibson,  .         .  .152 

Whealley  v.  Slade,     .         .  .91 

Wheldale  v.  Partridge,       .  .     137 

Whitaker  v.  Newman,         .  .     376 

V.  Wright,         258,  370,  387 

Whitbread  v.  Brockhurst,  .  .     340 

Ex  parte,  123, 124,  295,  297 

V.  Smith,           .  .     173 

Whitebread  v.  Bennett,       .  .     138 

White  V.  Cuddon,       .         .  91,  177 

V.  Hillacre,       .         .  .     165 

V.  Lisle,  ....     376 

V.  Warner,       .         .  .     109 

V.  White,          .         .  39,  270 

V.  Williams,     .         .  .11 

V.  Wilson,         .         .  .377 

Whitehead  v.  North,  .         .  .     397 

Whitehouse  v.  Partridge,   .  .     360 

Whitemarsh  r.  Robertson,  .       59 

Whitmore  v.  Oxborrow,      .  .     409 

r.  Ryan,     .         .  .     324 

Whittaker,  Re,  .         .         .  .     292 

Whittingham  i'.  Thornburgh,  .     179 

Whittou,  Ex  parte,     .         .  .     117 

Whitworth  v.  Gaugain,       .  .     149 

V.  Whyddon,    .  .     353 

Wickham  v.  Gattrell,          .  .175 

Widdowson  v.  Harrington,  Lord,       65 

Wigsell  I'.  Wigsell,     .         .  .270 

Wild  V.  Gladstone,      .         .  .341 

Wilding  V.  Richards,           .  .       31 

Wildens  r,  Arkin,       .         .  .     215 

Wilkins  v.  Fry,  ....       55 

V.  Stephens,          .  .     144 

Wilkinson  v.  Fowkes, 

r.  Henderson, 
Willan  V.  Willan, 
Willats  V.  Bushby,      . 
Willet  V.  Winnell, 
Willett  V.  Blandford, 
Williams  v.  Chard,     . 
Ex  parte,     . 
V.  Jersey,  Earl  of, 
V.  Lambe,    . 
V.  Lonsdale, 


83,  191, 

415 

173 

383 

'.      147, 

323 

112 

.   246, 

247 

407 

240 

f,   150, 

303 

162 

51,  65 

Williams  v.  Owen, 
V.  Roberts, 
V.  Williams, 
Williamson  ik  Gihon, 
Willis  V.  Jernegan,     . 
Willoughby  i'.  Willoughby 
Willis  V.  Slade,  . 

V.  Stradling, 
Wilmot  V.  Jenkins, 

V.  Pike, 
Wilson  V.  Beddard, 

V.  Cluer, 

Ex  parte, 

V.  ^Ietcalf, 

V.  Moore, 

V.  Stanhope 

V.  Wilson, 
Wilton  V.  Hill,    . 
Wiltshire  v.  Rabbits, 
Winch  t).  Birkiuhead  R.  R 
Winter  v.  Anson, 

V.  Innes, 
Withy  V.  Cottle, 
Witter  V.  Witter, 
Witty  V.  Marshall, 
Wood  V.  Abre}', 
I'.  Downes, 
V.  Griffith, 
V.  Hitchings, 
I'.  Milner, 
V.  Rowcliffe, 
V.  Sutcliffe, 
Woodgate  i'.  Field, 
Woodhouse  v.  Shepley, 
Woodmason  v.  Doyne, 
Woodrutfe  v.  Daniel, 
Woodward  v.  Millar, 
Woodyatt  v.  Gresley, 
Woolam  V.  Hearne, 
Wormald  v.  De  Lisle, 
Worrall  v.  Jacob, 

V.  Jones, 
Wortley  v.  Birkhead, 
Wrangham,  Ex  parte, 
Wray  v.  Steele, 
Wren  v.  Kirtou, 
Wright  V.  Atkj-ns, 

V.  Howard, 

V.  Jones, 

V.  Latham, 

V.  Lukes, 

V.  Morley, 

V.  Pilling, 

V.  Simpson, 

V.  Snow, 

V.  Tallis, 

V.  Vernon, 
Wrigley  v.  Swainson 
Wyatt  V.  Barwell, 
Wyllie  V.  Ellice, 


45, 


128, 
173, 


192 


.      Ill 

.     197 

29,  31,  216 

.      180 

.     227 

52,  163 

.     230 

.       87 

.     251 

53,  160,  161 

377 

119 

114 

119 

62 
322 
170 

46 
161 
212 
129 
385 

83 
143 
282 
187 

54 
400 

10 
399 

92 
211 
372 
187 
400 
308 
177 

62 
163 
303 
170 
364 
162 

75 

35 

58 

31 
392 

21 

25 
351 

49 
399 
273 
176 
216 
413 
181 
155 
281 


180, 


TABLE  OF  ENGLISH  CASES. 


XXXV 


Wythe  t'.  Henniker, 


264,  275 


Yates  V.  Hambley,  .  .  .126 
Yonge,  Ex  parte,  .  .  .  244 
V.  Reynell,  .  267,  268,  269 
York,  Mayor  of,  v.  Pilkington,  200,  204 
Young,  Ex  parte,         .         .         .     268 


Young  V.  Keigliley  .  .  241,  242 

V.  Walker,  ,  .  .192 

V.  Young,  .  .  .172 

Yovatt  V.  Winyard,  .  .  .210 

Zulueta  V.  Vinent,  .  .  196,  356 


TABLE  OF  CASES 

CITED   IN   THE  AMERICAN  NOTES. 


THE  PAGES  REFERRED  TO  ARE  THOSE  BETWEEN  BRACKETS  [     ]. 


PAGE 
239 

268 


Abbott's  Appeal, 
Abercrombie  v.  Knox, 
Aberdeen    Ry.    Co.    v.   Blaikie 

Bros., 183 

Abney  v.  Kingsland,  .         ,         .101 

Abraham  v.  Plestoro,  .         .310 

Acheson  v.  Miller,       ,         .         .     268 

Ackla  V.  Ackla,  .         .         .110 

Acton  V.  Woodgate,   .         .         .31 

Adams  r.  Adams,        .         .         .     248 

V.  Ames  Iron  Co.,   .         .     230 

V.  Brackett,     .         .      263,  274 

V.  Brown,         ,         .         .113 

V.  Dixon,  .         .      205,  257 

V.  Fisher,         .         .         .17 

V.  Mackay,       ...       46 

V.  Parker,        .         .         .114 

V.  Robertson,  .         .     168 

V.  Stephens,    .         .         .     168 

V.  Way,   .  .  .  .268 

V.  Whiteford,  .      196,  351 

Aday  v.  Echols,  .         .         77,  91 

Addams  v.  Tutton,     .         .         .     240 

Addison  v.  Bowie,      .         .        96,  287 

Adkins  v.  Paul,  .         .         .     363 

Adlum  V.  Yard,  ...       95 

Adsit  t;.  Adsit,  .         .  94,  96 

Agar  V.  Fairfax,  .         .         .     229 

Agassiz  V.  Squire,       .         .         .     185 

Agnew  V.  Bell,    ....     269 

V.  Fetterman,  .      254,  255 

Agric.  Bank  »;.  "Pallen,        .         .     270 

Ahearne  v.  Ilogan,     .         .         .184 

Aiken  v.  Ballard,        .         .         .     303 

V.  Gale,    .         .         .         .270 

Aiman  v.  Stout,  .         .         .183 

Albea  v.  Griffin,  ...       86 

Albergottie  v.  Chaplin,       .         .     230 

Aldborough  (Lord)  v.  Trye        .     186 

Alden  V.  Garver,         .         .         .     Ill 

V.  Holden,         .         .         .     363 

Alderson  v.  White,     .         .         .Ill 

Aldrich  v.  Cooper,    257,  263,  270,  272 


PAGE 

Aldrich's  v.  Hapgood,         .         .     269 

Alexander  v.  Fisher,  .         .     208 

V.  Pendleton,     .         .     157 

t'.  Worthington,         .     263 

Aleyn  v.  Belchier,       .         .         .     186 

Alfrey  v.  Alfrey,         .         .         .343 

Allen  V.  Allen,  .         .        48,  402 

V.  Board  of  Freeholders,       211 

V.  Burke,  ....       77 

V.  Centre  Valley  R.  R.       .     243 

V.  Chambers,     ...       86 

V.  Coffman,        .         .         .     309 

V.  Davison,        ...       78 

V.  Getts,     '         .         .         .92 

V.  Hall,      .         .         .         ,231 

V.  McCalla,         .         .         .151 

V.  McPherson,  .         .     248 

V.  Miller,  ....     309 

V.  Randolph,      .         .         .     338 

V.  Ranson,  .         .         .117 

V.  Simons,  .         .         .     317 

V.  Wells,    .         .         .         .243 

V.  Wood,  ....     269 

Allen's  Estate,    ....       86 

Allis  V.  Billings,  .         .         .182 

Allison  V.  Allison,       .         .      248,  364 

Alsberry  v.  Hawkins,       «  .         .     233 

Alston  V.  Munford,      .         .      263,  275 

Ambler  v.  Norton,       ...       94 

Ambrose  v.  Ambrose,         .         .       28 

Amelung  v.  Siekamp,         .         .     210 

American  Academy  v.  Harvard 

College,  ....       67 

Ames  r.  King,     .         .         .      217,308 

Ancaster  (Duke  of)  v.  Mayer,  261,  263 

Ancrum  r.  Dawson,    .         .         .     361 

Anderson  v.  Anderson,       .         .     243 

V.  Chick,     ...       86 

V.  Greble,  .         .     268 

V.  Guichard,       .         .     355 

V.  Hughes,  .         .     232 

V.  Lewis,    .         .         .     336 

V.  Neff,        ,       162,  163,  364 


TABLE    OF    AMERICAN    CASES. 


XXXYll 


Anderson  I'.  Noble,    .  .  .196 

V.  Sajlors,  .  .     268 

V.  Thompson,  .  .     286 

r.  Tompkins,  .  .     240 

V.  SV'ard,     .  .  .402 

V.  Wilkinson,  .  .     205 

Anderton  v.  Yates,     .  .  .     287 

Andress  i-.  Miller,       .  .  .243 

Andrew  v.  Spnrr,        .  .  .     168 

Andrews  v.  Bell,         ...       88 

V.  Brown,     .  ,  91,  246 

V.  Hobson,  .  .  .     402 

Matter  of,    .  .  .     281 

V.  Solomon,  .  .         6 

V.  Sparhawk,  .  .     156 

&  Bro.  V.  Jones,  .       48 

Andrew's  Heir  v.  Brown's  Adm.     246 

Anketel  v.  Converse,  .  .     128 

Annan  v.  Merritt,         ...       86 

Anstice  v.  Brown,       .  .  33,  138 

Anthony  r.  Anthony,  .  .     Ill 

V.  Bogers,     .  .  .118 

V.  Leftwich,  .  77,  304 

Apthrope  v.  Comstock,  196,  356,  377 

Arendell  t-.  Blackwell,  .  .     346 

Arguello  v.  Edinger,  .  86,  87 

Arlin  v.  Brown,           .  .  .     128 

Armistead  v.  Ward,    .  .  .     268 

Armitage  f.  Wickliffe,  .  110,373 

Armsby  v.  Wood,        .  .  .     364 

Armstead  v.  Hundley,  .  .179 

Armstrong  v.  Athens  Co.   .  .     302 

V.  Lear,     .  .  .282 

V.  Pierson,  .  .       88 

V.  Pratt,    .  .  .402 

V.  Ross,     .  .  .128 

V.  Stone,  .  .  .     280 

Armstrong's  Appeal,  .  .  .     263 

Arnhout,  Matter  of,     .  .  .290 

Arnold  v.  Klepper,      .  .  .     211 

V.  Mattison,    .  .  .111 

Arnot  V.  Woodburn,  .  .  .     269 

Arthur  v.  Arthur,       .  .  .     "108 

Artz  r.  Grove,    .         .  .  .111 

Ash  V.  Daggy,     ....       77 

Ashbrook  v.  Watkins,  .  .188 

Ashe  V.  Hale,      .         .  .  196,  356 

V.  Johnson,         .  .  .     356 

Ashhurst  v.  Mill, 

V.  Montour  Iron 
Ashton  V.  Atlantic  Bank, 
x^stor  V.  Miller,  . 
V.  Wells,    . 
Astreen  v.  Flanagan,  . 
Atkins  V.  Chilson, 

V.  Kron,  . 
Atkinson  v.  Grey, 

I".  Manks, 
Atlantic  De  Laine  Co 


Co., 


153, 


189 

121 

251 

114 

157 

101 

208 

42 

252 

21,  206,  380 

Tredick,    194 


Att.-Gen.  v.  Bradford  Canal,      .     211 
V.  Corp.  of  London, 

9,  14,  15,  17 
f.  Davey,  ...  69 
V.  Dean  of  Windsor  .  71 
V.  Federal  St.  Meeting 

House,  .         .       69 

V.  Jollv,       .         .  65,  69 

V.  Sheffleld  Gas  Con- 
sumers' Co.,  .     211 
u.  Utica  Ins.  Co.,  .     211 
V.  Wallace,           .  65,  67,  69 
I'.  Wilkins, 

Attwoodvr.  Coe, 
V.  Small, 

Atwill  V.  Ferrett, 

Atwood  V.  Vincent, 

Auburn  Co.  v.  Douglass, 

Austin  V.  Baintor, 


Atlantic  Ins.  Co.  v.  Lunar, 


If 


Bo\'s, 
Autrey  v.  Cannon, 
Averiil  v.  Guthrie, 
t'.  Loucks, 
Avery  v.  Kellogg, 

V.  Petton, 
Aymar  v.  RoflF,    . 
Aymer  v.  Gault, 
Ayres  v.  Carver, 
V.  Husted, 
V.  Mitchell, 
I'.  Valentine, 
V.  Waite,  . 
V.  Wright, 

Babcock,  Matter  of, 
Backett  i-.  Lamb, 
Backhouse  v.  Patton, 
Backler  v.  Farrow, 
Badeau  v.  Rogers, 
Bailey  v.  Brownfield, 

V.  Dean, 

V.  Duncan's  Rep 

V.  Le  Roy, 

V.  Mj-reck, 

V.  Sisson, 

V.  Stiles,  . . 
Daily  v.  Burton, 

V.  Richardson, 

V.  Ryder,  . 

V.  Wilson, 
Bainbridge  v.  Owen, 
Baines  v.  Goldey, 

V.  McGee, 
Baird  v.  Baird,   . 
Baker's  Appeal, 
Baker  v.  Backers, 

V.  Biddle, 

V.  Bradley, 

V.  Hathawaj", 

V.  Lorillard, 


67, 


162 
4 
.  177 
.  335 
.  128 
.  211 
.  377 
•  246 
.     363 

162,  163 

252,  272 
.  310 
.  319 
.  281 
.  206 

375,  403 
.  272 
.  174 
.  344 
.  115 

310,  314 

.  268 
.  94 
.  254 
.  233 
.  389 

268,  269 
.  3,  19 
.  233 
.  337 

312,  385 
.  320 
.  248 
.  309 
.  Ill 
.  303 
10,308,344 
.  118 
10 

251,  310 

241,  240 
.  243 
.  352 
.  227 
.  184 
.  77 
.  285 


XXXVlll 


TABLE     OF    AMERICAN    CASES. 


Baker  v.  Smith, 

. 

69 

Barron  v.  Barron, 

33,  45 

V.  Vining, 

, 

33 

Barrow  v.  Barrow, 

.       96 

V.  Whiting, 

399 

V.  Rhinelander, 

227,  379 

V.  Williamson,        3G3, 

37G, 

377 

V.  Wadkin, 

42,  51 

Balch  V.  Onion,  . 

113 

Barrs  v.  Fewkes, 

33 

Baldwin  v.  Johnson,  . 

33, 

24G 

Barry  v.  Stephens, 

222 

V.  Salter, 

84 

Bartholomew  v.  Yaw, 

.     198 

Baldy  v.  Brad}-, 

254 

Bartle  v.  Nutt,    . 

.     268 

Ballard  v.  McKenna,  . 

, 

182 

Bartlett  v.  Bartlett,     . 

.     351 

•     V.  Taylor, 

45 

r.  Boyd, 

.     314 

Bait.  &  Ohio''R.  R.  v.  Wheeling. 

V.  Crittenden, 

.     214 

19G, 

35(J, 

3G3 

V.  Fifield, 

.     417 

Bank  v.  Adger,  . 

2U9 

V.  Gale, 

.     363 

V.  Anderson,       .  v 

110 

V.  Gouge, 

.     233 

V.  Dubuque, 

61 

Bartlcy  v.  Bartley, 

.        16 

V.  Seton,     . 

312 

Bascorab  v.  Albertson, 

65 

Bank  of  America  v.  Pollock, 

317 

Basset  v.  Nosworthj',  147,  1 

53,157,162 

Auburn  v.  Roberts, 

144 

Basye  v.  Beard,  . 

197,  418 

Columbia  v.  Hagner 

. 

88 

Batchelder  v.  Wendell, 

.     312 

Kentucky  v.  Schuylkill 

Bateman  v.  Latham,  . 

.     139 

Bank, 

412 

418 

Bates  V.  Delavan, 

.      153 

Kentucky  v.  Vance, 

272 

V.  Johnson, 

.      165 

Monroe     v.    Schernier- 

V.  Norcross, 

.     153 

horn. 

19G 

356 

Batty  V.  Hill,      . 

.     217 

Newbury  v.  Eastman,   . 

151 

Baumgardner  v.  Guessfielc 

,         .       33 

U.  S.r.  Beverly     . 

261 

3G3 

Baxter  v.  Costin, 

61 

U.  S.  V.  Biddle,     . 

307 

335 

V.  Farmer, 

19,  23 

U.  S.  V.  Carroll,    . 

315 

Bayard  v.  Ches.  &  Del.  Co. 

,         .     363 

U.  S.  V.  Shultz,     . 

304 

Bayler  v.  Commonwealth, 

54 

IT.  S.  V.  Winston, 

269 

Bayley  v.  Greenleaf,   . 

.     128 

Utica  V.  Mersereau, 

G8, 

344 

Baylies  v.  Bussy, 

.      121 

Westminster  v.  Whyte, 

HI 

Baynton  v.  Barstow,  . 

.     346 

Bankhart  v.  Houghton, 

194 

Bays  V.  Beard,     . 

'     .     197 

Bankhead  v.  Alloway, 

227 

Beach  v.  Beach, 

.     309 

Bankhead's  Trust, 

28 

V.  Cooke, 

.      113 

Banks  i'.  May,     . 

78 

V.  White, 

.     317 

V.  Phelan, 

G5 

Beall  V.  Blake,    . 

.     339 

Banta  v.  Moore, 

335 

V.  Fox, 

G5 

Baptist  Ass.  v.  Hart's  Ex'rs., 

65 

Beals  V.  Cobb,    . 

.     317 

Barber  v.  Barber, 

47 

V.  Lee, 

.     182 

Barham  v.  Gregory,    . 

313 

Bean  v.  Coleman, 

.     202 

Barker  v.  Bell,    . 

153 

V.  Valle,     . 

79,  86 

V.  Belknap, 

402 

Bear  v.  Smith,     . 

.     262 

V.  Swain, 

203 

Beard  v.  Hubble, 

.     168 

Barkj-at  v.  Ellis, 

268 

Beattie  v.  Johnson, 

.     316 

Barnard  v.  Jewett, 

33 

Beatty  i'.  Byers, 

.     137 

V.  Moore, 

110 

V.  Kurtz, 

321 

Barnes'  Appeal, 

34 

V.  Smith  &  Thomps 

on,     .       21 

Barnes  v.  Lee,     . 

110 

Beaty  v.  Beaty,   . 

.     194 

V.  5[cGee, 

61 

Beaufort  v.  Collier,     . 

44 

Barnett  v.  Barnett's  Ex'rs., 

13G 

188 

Beavan  v.  Carpenter, 

25 

r.  Reed,- 

270 

Beavers  v.  Smith, 

.     233 

V.  Spratt, 

id 

194 

Beck  V.  Beck, 

.     333 

V.  Woods, 

310 

V.  Simmons, 

.      174 

Barney  v.  McCarty,     . 

151 

Becker  v.  Kehr,  . 

.     270 

V.  Myers, 

270 

Beckwith  v.  Howard, 

.     207 

Barnhart  r.  Greenshields,  . 

151 

V.  Kouns,     . 

84 

Barnsdale  v.  Lowe,     . 

25 

Bective  v.  Hodgson,    . 

.     138 

Barr  v.  Haseldon, 

309 

Beddow  v.  Dewitt, 

.     270 

Barringer  v.  Burke,     . 

413 

Bedell  v.  HoflPman, 

.     202 

TABLE    OF     AMERICAN    CASES. 


XXXIX 


Beebe  v.  Young, 

. 

177 

Beech  r.  Keep,    . 

80 

Beegle  v.  AVentz, 

33 

Beekraan  r.  The  People, 

. 

69 

Beers  v.  Reynolds, 

. 

228 

t'.  Spooner, 

389 

Beeson  v.  Beeson, 

, 

61 

Bein  t'.  Heath,     . 

,         , 

313 

Belcher  v.  Belcher, 

, 

84 

Belknap  v.  Sealv, 

177 

Bell  V.  Bell, 

. 

48 

V.  Fleming, 

110 

V.  Jasper, 

,      2G9 

364 

V.  Kellar, 

46 

V.  Mayor  of  N.  York 

113, 118 

233 

V.  Newman, 

243 

V.  Pomeroy, 

20 

V.  Price, 

193 

r.  Schrock, 

. 

317 

V.  Thompson, 

91 

V.  Twilight, 

.      151 

153 

V.  Williams, 

198 

V.  Woodward, 

310 

Bellamy  v.  Sabine, 

".      157 

177 

Bellas  V.  McCarty,'      . 

159,  160 

162 

Beller  r.  Jones,  . 

183 

Bellinger  v.  Shafer,     . 

285 

Belloat  i\  Morse, 

303 

Bellows  V.  Dewy, 

268 

V.  Stone, 

85,  168 

338 

Beman  v.  Rufford, 

212 

Bemis  v.  Upham, 

211 

Bending  tj.  Bending,  . 

94 

Benedict  i'.  Lynch,     . 

8 

I,  88 

Benhani  v.  Keane, 

153 

Bennett  v.  Buchanan, 

270 

V,  Butterworth, 

118 

V.  Fulmer,     . 

34 

V.  Smith, 

77 

Benson  v.  Leroy, 

254,  259, 

379 

Bent  V.  Yardley, 

309 

Bentley  v.  Cowman,   . 

333 

V.  Dock  Co.,  . 

231 

V.  ilackey,     . 

171 

V.  Phelps, 

399 

V.  Whittemore, 

168 

Benyon  i'.  Nettlefield, 

320 

Benzein  v.  Lenoir, 

151 

Beresford  v.  Drivers,  . 

12 

Bergen  v.  Bennett, 

121 

Berger  v.  Dutf,  . 

57 

Bernard  v.  Minshull, 

31 

Berry  v:  Cox, 

84 

V.  Rogers, 

297 

V.  Williamson,  . 

40,  42, 

313 

Besley  r.  Lawrence,   . 

272 

Best  V.  Blackburns,    . 

177 

V.  Schermier, 

114 

V.  Stow, 

85 

Bethca  v.  McColl, 

287 

ada  Co., 


Welsh, 


Bethell  i'.  Casson, 
V.  Sharp, 
Bethume  v.  Wilkins 
Betts  V.  Betts,     . 
V.  Gunn,    . 

V.  Menzies, 

V.  Wirt,     . 
Beverly  v.  Brooks, 
Bibb  V.  Martin,  . 
V.  McKinley, 
V.  Smith,    . 
Bicknell  i'.  Bicknell 
Biddle  v.  Ash,     . 
Biddulph  &  Poole's  Trusts,  Re, 
Bigelowr.  Hartford  Bridge  Co., 
V.  Majnard, 
V.  Wilson, 
Biggs  V.  Kouns, 
Bill  V.  The  Sierra  Ne^ 
Billage  v.  Southee, 
Billington's  Appeal, 
Lessee  v. 
Bingham  v.  Yeomans 
Bingham's  Appeal, 
Binus  V.  Parr,     . 
Birchettr.  Boiling, 
Bird  V.  Styles,    . 
Birds  V.  Askey,  . 
Bishop  V.  Day,    .  . 
r.  Breckles, 
Bispham  v.  Price, 
Bitzer  v.  Hahn,  . 
Black  t'.  Black,  . 

V.  Bush,   . 

V.  Erwin, 

V.  Lamb, 

V.  Scott, 

V.  Shreve, 
Black's  Appeal, 
Black  River  Bank  v. 
Blackeaey  v.  Dufau, 

V.  Ferguso 
Blackett  v.  Bates, 
Blackie  v.  Clark, 
Blagrave  v.  Routb, 
Blain  v.  Harrison, 
Blair  v.  Bass, 

V.  Bromley, 
Blake  v.  Hey  ward, 

V.  Langdon, 
Blakesley  v.  Johnson, 
Blauchard  v.  McDougal,    . 

V.  Tyler,   . 
Blauvett  v.  Akerman, 
Bledsoe  i'.  Gumes, 
Bleight  V.  Bank, 
Bleukinsopp  v.  Blenkinsopp, 
Blithe  r.  Dwinal, 
Blodgett  V.  Wadhams, 
Blomfield  v.  Eyre, 


9,  12 

33 

210 

310 

168 

6 

136 

270 

268 

281 

21 

123 

211 

290 

211 

193 

113 

205 

194 

184 

285 

151 

363 

100 

351 

83 

363 

275 

270 

241,  243 

188,  192 

.     103 

.     337 

.     243 


,     377 

.     254 

35,  377 

.     243 

.     268 

.     243 

363,  392, 393 

77,81 

.     177 

.     184 

.     234 

33,  111 

.     177 

.      157,  162 

222 

.     198 

.       86 

.     151 

.       61 

.     128 

.     136 

180 

115 

110 

281 


199, 
'age. 


xl 


TABLE    OF    AMERICAN    CASES. 


Blondheim  v.  Moore, 
Bloodgood  V.  Brueu, 
V.  Kane, 
V.  Zeily, 
Blount  V.  Garen, 
Blow  V.  Gage, 
Blow  V.  M.aynard, 
Bluck  V.  Galsworthy, 
Blue  V.  Patterson, 
Blyliolder  v.  Gilson, 
Blystone  v.  Blystone, 
Boaler  v.  Mayor, 
Boardman  v.  Meriden 
Bobbitt  V.  Flowers, 
Bodine  v.  Glading, 
Boerum  v.  Sclienck 


Bogardus  v.  Trinity  Church,  338,  339 


15 


196 


Bogert  V.  Bogert, 
V.  Hertell, 
Boggs  V.  Anderson,    . 
V.  Chambers,    . 
V.  Varner, 
■Boiling  V.  Boiling, 
V.  Carter, 
Bollinger  v.  Chouteau 
Bollo  I'.  Navarro, 
Bolser  v.  Cushman,    . 
Bolton  V.  Gardner, 
Bolware  v.  Bolware,  . 
Bond  V.  Hendricks,    . 
V.  Little,  . 
V.  Zeigler, 
Bonney  v.  Bonney, 
Bonsall's  Appeal, 
Boone  v.  Boone, 
V.  Chiles, 
Booth  V.  Albertson,    . 
V.  Barnum, 
V.  Booth, . 
V.  Sineath, 
V.  Stamper, 
Borah  v.  Archer, 
Bostock  V.  Floyer, 

V.  North  Stafford  R.  R 
Co., 

Boston  Co.  V.  Worcester  R.  R 
Corp., 
Iron  Co.  V.  King, 
Water  Power  Co.  v.  Gray 
Bostwick  I'.  Atkins,   . 
Ex  parte,    . 
Matter  of,    . 
Botefeur  v.  Wyman,   . 
Botsford  V.  Burr, 
Bouck  V.  Bouck, 
Boughton  V.  Allen,     . 
V.  Boughton, 
V.  Phillips, 
Bouldin  v.  The  Mayor  of  Balti- 
more,     .         .         .         .         . 


11 


352 
254 
337 
227 
335 
3G3 
233 
6 
248 

33 
174 
268 
217 
269 
82,  88 

61 


17 
138 
1,  153 
230 
153 
227 
157 
115 
230 
235 
338 
66 
356 
199 
251 
335 
285 
230 

162,  304 
313 
151 

176,303 
.  287 

310,  346 

233,  315 
61 


211 

303 
118 
193 
184 
286 
287 
227 
33 
309 
312 
263 
389 

196 


Bowditch  V.  Green,     . 

.     269 

Bowen  v.  Johnson, 

.     222 

I'.  Waters, 

84 

Bowers  v.  Keesechcr, 

.     310 

V.  Oyster, 

.     123 

Bowie  V.  Berry, . 

.     233 

Bowles  V.  Woodson,  . 

.        84 

Bowman  v.  Bates, 

177,  178 

V.  Irons, 

77 

V.  Walker,   . 

.     157 

Bowman's  Appeal, 

.     285 

Box  V.  Barrett,   . 

.       94 

Boyce  v.  Colclough,  . 

.     249 

V.  Coster, 

.     246 

V.  Smith,. 

.      183 

Boyd    V.  Brisban, 

.     400 

Ex  parte, 

.       28 

V.  Glass,  . 

.     282 

V.  Harris, 

.     115 

i\  Hawkins, 

.       61 

V.  Iloyt,   . 

309,  310 

V.  McDonough, 

.     268 

v.  McLean, 

.       33 

V.  The  Chesapeake 

::;o.,  .    i98 

Boye  V.  Davis,    . 

.       79 

Boykin  v.  Ciples, 

.     313 

Boynton  v.  Boynton, . 

,     404 

Boyse  v.  Rossborough, 

.     249 

Brace  v.  Wehnert, 

83 

Bracken  v.  Hambrick, 

86 

V.  Kennedy, . 

.     240 

V.  Miller, 

.     157 

Brackenridge  t;.  Holland, 

57,  61 

Bradberry  v.  Keas,    . 

.     174 

V.  Manchester, 

&c.. 

R.  R.  Co., 

.     217 

V.  White,  . 

85 

Bradford  v.  Forbes,    . 

,     261 

V.  Geiss, 

.     344 

V.  Greenway, 

46 

V.  Kents, 

94,  96 

V.  Romney, 

.     168 

V.  Union  Bank, 

.        85 

Bradish  v.  Gibbs, 

.       99 

Bradley  v.  Chase, 

188,  392 

V.  Chester  Valley 

R.  R. 

Co., 

.     121 

V.  Norton, 

.     217 

V.  Root, 

.     364 

Bradsher  v.  Lee, 

.     211 

Brady  v.  Cabitt, 

.     106 

V.  McCoskcr,    . 

.     249 

r.  Waldron, 

114,  208 

V.  AVeeks, 

.     211 

Bragg  V.  Massie's  Ex'rs.,    . 

.     Ill 

V.  Paulk, . 

.       28 

Braham  v.  Bustard,    . 

.     217 

Brailey  v.  Sugg, 

.     269 

Brandon   v.  Brandon, 

.     397 

Brant's  Will, 

.     263 

TABLE    OF    AMERICAN    CASES. 


xli 


Brashear  r.  Macey,     . 

.     208 

Brookfield  v.  Williams, 

233 

Brasher  r.  Van  Cortlandt, 

.     297 

Brooks  V.  Byara, 

8,  344 

392 

Brashier  v.  Gratz, 

88 

V.  Dent,  .         .        83,  263 

351 

Bratt  V.  Bratt,^  . 

.      128 

t».  Ellis, . 

33 

Braxton  v.  Coleman,  . 

.     233 

V.  Fowle, 

33 

V.  Lee, . 

.       51 

I'.  Gibbons,     . 

335 

Brazee  and  Others  v.  Lancaster 

t'.  Harris, 

268 

Bank,      .... 

162,  163 

r.  Marburry,  . 

31 

Brazleton  v.  Brazleton, 

.      151 

r.  StoUey,      . 

20 

Breckenridge  v.  Brooks,     . 

.     118 

V.  Thomas,     . 

3C3 

V.  Ormsby,    . 

.     182 

V.  Wheelock, 

8 

3,  86 

Breden  r.  GilHland,    . 

.     263 

Broome  v.  Curry, 

137 

Breuan  v.  Preston, 

.     233 

Broughton  v.  Broughton, 

61 

Brendle  v.  Germ.  Reformed  Con- 

V. Hutt,    . 

189 

gregation, 

69 

Brower  v.  Fisher, 

290 

Brewer  v.  Brewer, 

81,  8G 

Brown's  Appeal, 

208 

t'.  Franklin  Mills,  . 

.     269 

Brown  I'.  Armistead,  . 

168 

V.  Wilson, 

.       77 

V.  Aspdcn, 

399 

Brewster  v.  City  of  Newark, 

.     356 

V.  Brown, 

92 

V.  Hanimet, 

242,  243 

V.  Budd,  . 

153 

V.  Hodges,  . 

.     196 

V.  Bulkley, 

363 

Briant  v.  Reed,  . 

.     203 

V.  Caldwell,      . 

94 

Brice  r.  Brice,    . 

.     183 

V.  Carson, 

111 

Brickell  v.  Jones, 

.     198 

V.  Combs, 

29 

Bridenbecker  r.  Lowell,     . 

.       33 

V.  Concord, 

69 

Bridge  v.  Bridge, 

.       80 

V.  Duchosne,    . 

213 

Bridgen  r.  Carhartt,  .      162 

163,  389 

V.  Dysinger, 

33 

Bridges  v.  Wilkins,    . 

.       44 

V.  Gilliland,     . 

77 

t'.  Winters,     . 

.  •  268 

V.  HaflF,     . 

360 

V.  Wood, 

.       45 

V.  Higginbotham, 

239 

Bridgraan  v.  Bridgman, 

.     192 

V.  James, 

263 

275 

Briesch  v.  McCauley, 

198,  363 

V.  Jones,  . 

31 

Briggs  r.  Penny, 

29,31 

V.  Kelsey, 

65 

V.  Planter's  Bank,  . 

.     272 

V.  Kennedy, 

169 

Ex  parte. 

.     174 

r.  Lamphear,  . 

191 

Bright  V.  Hutton, 

.     239 

V.  McDonald,   . 

257 

309 

V.  Legerton,    . 

.       62 

V.  Nickle, 

111 

123 

Brill  V.  Stiles,    . 

.     331 

V.  Peck,  . 

182 

BrinkerhoflF  v.  Brown, 

303,  310 

V.  Pitney, 

92 

V.  Marvin, 

.     272 

t».  Ray,     . 

269 

r.  Thallhiraer, 

.     121 

tj.  Ricketts,      92,  2: 

8,316 

320 

Brinnan  v.  Brinnan,  . 

.       27 

V.  SiriTons, 

270 

Brinson  v.  Thomas,    . 

.     269 

V.  Simpson, 

128 

Briscoe  v.  Power, 

.♦270 

V.  South  worth, 

23 

Brittin  v.  Crabtree,    . 

.     363 

V.  Stewart, 

in 

356 

Britton  v.  Lewis, 

.       61 

V.  Speyers, 

175 

V.  Updyke,     • 

.     270 

V.  Swann, 

198 

Broadbent  v.  State,    . 

19 

t'.  Van  Dyke,   . 

228 

Broadus  r.  Rosson,     . 

.     286 

V.  Vanlier, 

128 

Brock  V.  Barnes, 

.      184 

t'.  Winans, 

356 

V.  Cook,  . 

.       86 

V.  Wood, . 

162 

Brockway  r.  Copp,     . 

.     335 

V.  Worcester  Bank, 

113 

Brogden  v.  Walker,    . 

183,  191 

Brown's  Case,    . 

285 

Brolasky  v.  Gally's  Ex'rs., 

,     136 

Browne,  Re, 

280 

Bromley  v.  Elliott, 

.     239 

Brownell  v.  Curtis  et  al.. 

334 

Bronson  v.  Cahill, 

.       82 

Brubaker  v.  Okeson, . 

106 

V,  La  Crosse  Railroad 

Bruce  v.  Burdet, 

220 

Company, 

.     321 

r.  Edwards, 

268 

Brook  V.  Brook, 

.       30 

V.  Smith, 

153 

Brooke  f.  Berry, 

177,  183 

Bruch  V.  Lantz, 

61 

156 

xlii 


TABLE    OF    AMERICAN    CASES, 


Bruen  v.  Brucn, . 

V.  Crane, . 

V.  Hone,  . 
Bruin  v.  Knott,  . 
Brumagin  v.  Chew,     . 
Brunswick  (Duke  of)  v.  D 

Cambridge,     . 
Brush  V.  Vanderbergh, 

V.  Ware,  . 
Bruton  v.  Rutland,     . 
Bryan  i'.  Blythe, 

V.  Ilickson, 
Bryant  t'.  Crosby, 
Bryant's  Ex'rs.  v.  Boothe, 
Bryson  v.  Peak.  . 
Buehan  v.  Sumner,    . 
Buclianan  v.  Matlock, 
Buck  I'.  Hair, 

V.  HoUoway, 

Mt.  Co.  V.  Lehigh  Co 

V.  Pike, 

V.  Spofford, 

V.  Swazey, 

1'.  Winn,    . 
Buckles  »).  Lafferty,    . 
Buckley  v.  Barber, 

V.  Buckley,  . 
V.  Corse, 
Buckmaster  v.  Thompson, 
Budd  I'.  Busti,    . 
Buell  V.  Buckingham, 
Buffalo,  &c.,  R.  R.  Co.  v.  I 

SOD, 

Buffalow  V.  Buffalow, 
Buford  V.  Francisco,  . 
Bugbee  v.  Sargent,     . 
Building  Association  v.  Co 
Buist  V.  Dawes, . 
Bulkley  v.  Bulkley,    . 

V.  Van  Wyck, 
Bull  V.  Bull, 

V.  Schubcrth, 
Bullard  v.  Bowers, 
Bullen  V.  Sharp, 
Buller  V.  Dunn,  . 
Bullock  V.  Adams, 

V.  Boyd, 
Bulows  V.  Committee  of  0' 
Bumpass  v.  Plainer,  . 
V.  Webb,      . 
Bunker  V.  Locke, 
Bunn.  Ex  parte, 
Bunnell  v.  Read, 
Burbridge,  Re,   . 
Burch  V.  Coney, 
Burden  v.  McElmoyle, 

V.  Stein, 
Burgess  v.  Burgess,    . 

V.  Smith, 
Burhans  v.  Burhans, . 


ke  of 


)09, 


87 
243, 


33,  363, 


246, 
195, 


amp- 
183, 


31, 


226, 
Neall, 


230, 


335 
31X 
191 
287 
397 

345 

23 
251 
310 
310 
197 
111 
179 
,  88 
246 
248 

61 
153 
211 

33 
268 
389 
246 

61 
246 
263 
346 

77 
128 

Gl 

33 
310 
360 
310 
272 

96 
303 
363 
254 
239 
233 
239 
286 
309 
227 
194 
151 
193 
208 
364 
314 
297 
334 
228 
208 
217 
198 
312 


Burk  V.  Chrisman, 
Burke  v.  Seeley, 
V.  Smith, 
Matter  of, 
Burlingame  v.  Ilobbs 
Burn  V.  Poaug,  . 
Burnap  v.  Wight, 
Burnet  v.  Denniston, 
Burnett  v.  Sanders, 
Burnham  v.  Kempton, 
Burns  v.  Huntingdon  Bank, 

V.  Taylor, 
Burnside  v.  Merrick, 
Burpee  v.  Smith, 
Burr,  Matter  of, 
V.  McEwen, 
V.  Sim,        .         33,  137, 
V.  Smith,    . 
Burrows  v.  McWhann 
V.  Miller, 
V.  Ragland, 
Burr's  Executors  v.  Smith 
Burrus  v.  Roulhac, 
Burt  V.  Cassedy, 
V.  Herron, . 
V.  Wilson, 
Burton  v.  Black, 

V.  Rutland, 
V.  Wiley, 
Burtus  V.  Tisdall, 
Burwell  v.  Cawood, 

V.  Mandevill 
Busbee  v.  Littlefield, 
Bush  V.  Cooper, 
V.  Golden, 
V.  Stamps, 
Butler  I'.  Ardis,  . 
v.  Burkey, 
V.  Catling, 
V.  Durham,      .       168, 
I'.  Elliott, 
V.  Haskell, 
V.  Hicks,  . 
^  V.  O'Hear, 
V.  Spann, 
V.  Stevens, 
V.  Viele,  . 
Butman  i'.  Porter, 
Butts  V.  Genung, 
Bybec  v.  Tharp, 
Byers  v.  Clanahan, 


Cabeen  v.  Gordon, 
Cadbury  v.  Duval,  .  141 
Cadwalader  v.  Montgomery 
Cadwalader's  Appeal, 
Cady  V.  Potter,  . 
CafFey  v.  McMichael,  . 
Cain  V.  Warford, 
Calder  v.  Chapman,   . 


.  269 

77 

.  346 

.  287 

.  220 

.  307 

.  -361 

.  113 

.  389 

.  312 

.  ^69 

.  128 

.  24G 

.  334 

.  292 

61 

138,  139 

65 

.  269 

.  400 

.  248 

69 

.  128 

.  153 

.   31 

128,  169 

.  202 

.  230 

.  198 

.  243 

316,  323 

,  241 

.  363 

.  110 

153 

.  268 

.  226 

.  269 

344,  363 

303,  309 

.  364 

79,  174 

59 

84 

310 

.],  153 

154 

78 

310 

286 

269 


156,  254 

.   110 

61 

168,  202 
.  286 
.  183 
.  156 


15] 


TABLE    OF    AMERICAN    CASES. 


xliii 


Caldecott  i-.  Griffith,. 

.     239 

Caldwell  v.  Blackwood, 

.     314 

V.  Knott, 

.     211 

V.  Stileraan, 

.     241 

V.  Taggart, . 

.     312 

V.  Van  Vlissenge 

n,       .     212 

V.  Williams, 

18,  194 

Calkins  v.  Evans, 

.     363 

V.  Lang, 

.       45 

Callan  v.  "Watham, 

.     363 

Calloway  v.  Witherspoon, 

84,,  183 

Callum  V.  Emanuel,   . 

.     117 

Calvin  v.  Wiggam,     . 

.     208 

Calvit  r.  Markham,     . 

.     240 

Calwell  I'.  Boyer, 

20,  231 

Camblatt  v.  Taperv,  . 

.     241 

Camden  R.  R.  v.  Stewart,  . 

.     304 

Cameron  v.  Mason, 

.     128 

Cammack  v.  Johnson, 

.     243 

Camp  V.  Bates,  . 

.     208 

V.  Grant,  . 

.     243 

Campbell  v.  Baker,     . 

.     268 

f.  Baldwin, 

.     128 

V.  Campbell, 

.     104 

V.  Foster,    . 

.       42 

V.  Johnson, 

.        61 

V.  McLain,  . 

61 

V.  Mesier,    . 

267,  319 

V.  Miller,     . 

.       62 

V.  "Western, 

.     192 

I'.  Whittingham, 

.     179 

Campion  v.  Kelley,     . 

.     346 

Canal  Co.  v.  Clark,     . 

.     217 

f.  Railroad    Co. 

.     303 

Canedy  v.  Marcy, 

.     168 

Canfield  v.  Morgan,    . 

.     206 

V.  Sterling,  . 

.     389 

Cannaday  r.  Shepherd, 

.       84 

Cannon  v.  Norton, 

.       20 

Canton  Co.  r.  Railroad  Co 

.,       77,  196 

Cape  Sable  Co.'s  Case, 

.     252 

Caphart  r.  Huey, 

.     364 

Caplinger  v.  Stokes,  . 

33,  184 

Capnert'.  Flemington  Minii 

igCo.     508 

Carberry  v.  Tennehill, 

84 

Carder  v.  Commissioners, 

94 

Carey  r.  Callam, 

.       33 

V.  Ector, . 

.     346 

f.  Hillbouse,    . 

.     312 

V.  Hoxey, 

312,  320 

V.  Jones, . 

.     344 

r.  Smith,. 

.     346 

Carlisle  v.  Stephenson, 

.     208 

Carman  r.  Watson,     . 

.     363 

Carmichael  v.  Browder, 

.     309 

f.  Hughes, 

.     287 

1".  Reed,   . 

.     309 

Carnall  v.  Wilson, 

.     108 

Carneal  v.  Wilson, 

.     344 

Carneal's  Heirs  v.  Dav, 

.     303 

83 
363 
231 
110 
111 
128 
150 
329 
128 
157 
259 
254^  255 

42 
310 
3j0 

45 
65,  69,  309 


Carpenter  v.  Benson,  .         .       13 

V.  Bower,  .  .  .114 
V.  Hall,  .  .  .  309 
t'.  Koons,  .  .  .  270 
V.  Mutual  Safety  Ins 

Co.,      . 
V.  Prov.  Ac,  Ins.  Co. 
V.  Schermerhorn, 
V.  Simmons, 
V.  Snelling, 
Carr  v.  Hobbs,    , 
V.  Wallace, 
Carradine  r.  O'Connor, 
Carrico  v.  Farmers'  Bank, 
Carrington  v.  Brents, 
V.  Didier, 
V.  Manning, 
Carroll  v.  Renich, 

V.  Roosevelt,  . 
Carson  r.  Coleman,    . 

V.  Murray, 
Carter  v.  Balfour, 

V.  Carter,  45,  49,  111,  162,  233 

V.  Jones, 

V.  Jordan, 

V.  Longworth, 

V.  RoUand, 

V.  Sims,  . 

V.  Taylor, 

V.  Thompson, 

V.  Treadwell,  . 

V.  Wolfe, 

Cartwright  v.  Clark, . 

Caruthers  v.  Humjihreys, 

Carver  v.  Miller, 

Cary  v.  Folsom, 

Case  V.  Abeel,    . 

V.  Carroll, 

Casler  v.  Thompson, 

Cassidaj-  v.  McDaniel, 

Castleman  v.  Veitch, 

Caston  V.  Caston, 

Catching  v.  Terrell,   . 

Gates  V.  Woodson, 

Catlin  V.  Valentine,  . 

Caton  V.  Caton, 

V.  Lewis, 

V.  Willis, 

Cauffman  v.  Cauffman, 

Cauley  v.  Lawson, 

Cecil  Bank  v.  Snively, 

Center  v.  P.  &  M.  Bank,     .         .153 

Central  Bridge  r.  Lowell,  .         .     211 

Chadoin  v.  Magee,      .         .         .194 

Chadwick  V.  Turner,  .         .     153 

Chaires  v.  Brady,        .         .         .112 

Chalfant  v.  Williams,         .         .     108 

Chalmers  v.  Chambers,      .         .     309 

Chamberlain  v.  Gardner,   .         .121 

Chamberlayne  r.  Temple,  .         .     270 


317 

19 

336 

286 

129 

114,  230 

61 
309 

05 
403 
110 
208 
270 
57,  61 
314 

80 
317 
335 

96 
210 
182 
211 

86 

14 
303 
,97 
309 


230, 


xliv 


TABLE    OF    AMERICAN    CASES. 


Chambers  v.  Crabbe, 
V.  Mauldia, 
V.  Tulane, 

Cbamness  v,  Crutchfield 

Champlia  v.  Champlin, 
V.  Layton, 

Champney  v.  Cooke, 

Champneys  v.  Buchan, 

Chance  i'.  McWhorter, 
I'.  Teeple, 

Chandler  v.  Dyer, 

V.  Fillet,  . 
V.  Goodrich, 
V.  Moulton, 

Chaney  v.  Smalhvood, 

Chant  V.  Brown, 

Chapin  v.  Cram, 
V.  Weed, 

Chaplain  v.  Givens,   . 

Chapline  v.  Moore,     . 

Chapman  v.  Chapman, 
V.  Esgar, 
V.  Hamilton 


180 

38 

84 

'  168 

8,  45 

168 

115 

303 

128 

21 

162 

58 

231 

61 

281 

6 

110 

61 

37 

287 

23,  124,  309 

.  257 

150,  272,  314, 

318 

V.  Hughes,  .         .111 

Chappedelaine  v.  Dechenaux,  .  227 
Chappell  V.  Allen,  .  .  .  110 
Charles   R.    Bridge    v,    Warren 

Bridge,   . 
Charnley  v.  Hansbury, 
Chase  v.  Abbott, 

V.  Lockerman, 
V.  Manhardt,    . 
V.  Series, 
Chase's  Case, 
Chastain  v.  Smith,     . 
Cheale  r.  Kenward,    . 
Cheesbrough  v.  Millard, 
Cheescborough  v.  Greene 
Cheever  i'.  Perley, 
Cherry  v.  Belcher, 

V.  Stem, 
Chesapeake  &  Ohio  Co.  v.  Young, 

210,378 
Chesson  v.  Chesson,  . 
Chester  v.  Greer, 
Chesterfield  v.  Janssen, 
Cheswell  v.  .Chapman, 
Chew  I'.  Barnett, 

V.  Farmers'  Bk.  of  Maryland,  6,  7 
V.  Nicklin,         .         .         .136 
Chewing  v.  Singleton,        .      167,  168 
Chichester  v.  Marquis  of  Donegal,  10 
Child  V.  Brace,  ....       61 
V.  Burton,  .         .         .     128 

Chilton  V.  Braiden's  Adm'tx,  .  128 
Chiswell  V.  Morris,  .  .  .  23'3 
Choteau  v.  Jones,  .  .  .  153 
Chouteau  v.  Burlando,  .  .115 
Christ  V.  DiflFenbach,  .      106,  168 


.  376 

86 

.  115 

263,  275 
.  363 
.  310 
.  335 
86 
78,  83. 

270,  272 
.  268 
.  115 

320,  363 
.  210 


227 
250 
176 
231 
162 


11 


Christean  v.  Ellis,  .  .  240,  243 
Christler's  Exr's.  v.  Meddis,  .  136 
Christmas  v.  Mitchell,  .  .  290 
Christ's  Hospital  v.  Grainger,  .  67 
Christy  v.  Barnhart,  ...  86 
Chubb  V.  Peckham,    .         .  .77 

Church  V.  Sterling,  ...  33 
Churcher  v.  Guernsey,  .  .  151 
Churchill's  Heirs  v.  Aiken's  Adm'rs,  61 
City  Bank  v.  Bangs,  .  .  .203 
City  Council  v.  Page,  151,  157,  224 
City  of  Phila.  v.  Davis,  94,  95,  97 
I'.  Girard's  Heirs,  65 
City  of  Rochester  v.  Curtiss, 
Clabaugh  v.  Byerly,  . 
Clack  V.  Carlon, 
Clagett  V.  Hall, 
Glamorgan  v.  Guisse, 
Clancy  i'.  Craine, 
Clanricarde  v.  Henning, 
Clapp  V.  Thaxton, 

V.  Rice,    . 
Clark  V.  Beach, 
V.  Bundy, 
V.  Burnham,     . 
V.  Condet, 
V.  Davis, 
V.  Garfield, 
V.  Hackett, 
V.  Henry, 
V.  Henshaw, 
V.  Hilton, 
V.  Hunt,  . 
V.  Long,  . 
V.  Malpas, 
V.  Partridge,    . 
V.  Phelps, 
V.  Reed,   . 
V.  Saginaw  Bank, 
V.  White, 
V.  Wilson, 
Clark's  Adm.  v.  Van  Reimsdyk 

Appeal, 
Clarke  v.  Clayton, 

V.  Dutcher,     . 
V.  Franklin,    . 
V.  Gilbert, 
V.  Lott,  . 
V.  Reins, 
Re, 
Clarkson  v.  De  Peyster, 

V.  Morgan,  . 
Clason  V.  Morris, 
Claussen  v.  La  Franz, 
Claj'  &  Craig  v.  Hart, 
t'.  Turner, 
V.  Wren,     . 
Clayton  v.  Bussey,      .     , 
V.  Freet, 
V.  Hlingsworth, 


128 


211 
150 

Gl 
350 
310 
334 
184 
416 
209 
256 

23 

33 

1,  112 

335 

56 
363 
111 
263 

33 
129 
312 
168,  133 
106 
335 
392 
339 
211 
241 
363 
208 
231 
188 
139 
239 

78 

77 
286 
302 
157 
269 

33 

92 
174 
117 
168 
168 

83 


TABLE    OF    AMERICAN    CASES. 


xlv 


Clayton  v.  Thompson, 
Clayton's  Case,  . 

3G3 
221 

Clearley  v.  Babcock, 

1G8 

Clegett  V.  Kilbourne, 
Clcghorn  v.  Insurance  Ba 

nkof 

239 

Columbus, 

243 

Cleland  v.  Gray, 

399 

Clements  v.  Bowes,    . 

319 

V.  Moore,     . 

3G3 

Clery's  Appeal, 
Cleveland  v.  Cit.  Gas  Co  , 

2G3 
211 

Clifton  V.  Davis, 

187 

V.  Livor, 

197 

Climer  v.  Ilovey, 
Clive  V.  Carew, 

85 
3G3 

Cloud  V.  Hamilton,    . 

17 

Clowes  V.  Beck, 

393 

Clute  V.  Potter, 

198 

Coats  V.  Robinson,     . 

46 

Cochran  t".  Rison, 

418 

Cochrane  v.  Willis,    . 

188 

Cocke  V.  Evans, 

3l'o, 

399 

V.  Phillips, 

233 

V.  Trotter, 

3G3 

Cockell  V.  Taylor,      . 

174 

Cockrell  v.  Warner,  . 

402 

Cocron  v.  Middlcton, 

315 

Coder  v.  Huling, 

33 

Coe  V.  Turner,    , 

310 

V.  Winniplseogee  Man 

af.  Co. 

211 

Coffee  V.  Newsom, 

356 

V.  Ruffin, 

61, 

174 

Coffeen  v.  Brunto, 

217 

V.  Brunton, 

217 

CoflSng  V.  Taylor, 

168 

Cogswell  V.  Cogswell, 
Coil  V.  Pittsburgh  College 

261 
177 

Colby  t'.  Kenniston,   . 
Colclough  V.  Boyse,  . 

153 
249 

Cole  Co.  V.  Anghey,  . 

336 

Coleman  v.  Barnes,    . 

310 

V.  Gage, 

19G 

356 

V.  Mellersh, 

226 

V.  Rose, 

363 

V.  Wooley,  . 
Coleman's  Case, 

4G 
290 

Appeal,     . 
Coles  and  Others,  Exr's.  v. 

.       90 
Bowne,  85 

V.  Coles,    . 

389 

V.  Raymond, 

21 

I'.  Sims,    . 

152 

V.  Trecothick,  . 

Gl 

CoUett  V.  Morrison,    . 

160 

Collingwood  v.  Row, 

141 

Collins  V.  Archer, 

162 

V.  Carlisle,     . 

30,  31 

V.  Champ's  Heirs, 

136 

142 

I'.  His  Creditors, 

no 

V.  Dickerson, 

221 

,  230 

V.  Lavenburg, 

46 

Collins  V.  Smith, 

33,  84,  91 

Collis  V.  Robbins, 

263 

Collom  V.  Francis, 

12 

Colman  v.  East  Counties  R.  R.  Co. 

321 

Coloni,  Re, 

375 

Colt  V.  Lasnier, 

251 

Colton  V.  Ross,  . 

248 

309 

V.  Wood, 

33 

Columbian       Government 

V. 

Rothschild,     . 

2 

Columbus  V.  Jacques, 

211 

Colvin,  Matter  of, 

298, 

355 

V.  Owen, 

269 

Colyer  v.  Finch, 

151, 

162 

Combs  V.  Boswell, 

363 

Comegys  v.  State  Bank,     . 

269 

Coml.  Bk.  V.  Western  Bank 

269 

270 

Commercial  Ins.  Co.  v.  McL 

oon, 

309 

Commonwealth  v.  Addicks, 

283 

V.  Duffield, 

09 

V.  Franklin 

Can. 

Co.,        . 

356 

V.  McAliste 

r,     • 

60 

V.  Martin, 

42 

138 

V.  Martin's  Exr's. 

136 

V.  Shelby, 

263 

Com.  of  Moyamensing  v.  Long, 

301 

Compton  V.  Greer, 

227 

Comstock  V.  Rayford, 

302 

Conally  v.  Cruger, 

356 

Conant  v.  Warren,     . 

335 

Conklin  v.  Conklin,  . 

233 

Conner  v.  Banks, 

111 

V.  Chase, 

20 

V.  Drake, 

192, 

373 

V.  Lewis, 

33 

Conrad  v.  Foy,  . 

268 

V.  Harrison,  , 

270 

Consequa  v.  Fanning, 

227, 

379 

Consolidated  Co.  v.  Riley, 

161 

Constable  v.  Bull, 

31 

Contee  v.  Dawson, 

312, 

350 

Conter  v.  Pratt, 

417 

Converse  v.  Blumrich, 

128 

t>.  McKee.   . 

243 

Conway  v.  Alexander, 

,     . 

111 

V.  Ellison,     . 

176 

198 

Conwell  V.  Evil!, 

HI 

V.  Sandige,  .      242 

,  243, 

244 

Cook  V.  Barr,     . 

230 

i\  Burton, 

250 

V.  Cole,     . 

174 

V.  Cook,    . 

176 

V.  Ellington,      . 

31 

V.  Hinsdale, 

267 

V.  Gaiza,  . 

151 

S.  Gregson, 

252 

V.  Rosslyn, 

205 

V.  Smith,  . 

114 

V.  Vick,     . 

192 

XlVl                     TABLE 

OF 

AM 

Cooke  V.  Husbands, 

.    4r 

,   4G 

V.  Lamotte, 

184 

V.  Nathan, 

. 

168 

Coombs  V.  Warren,     . 

114 

Coon  V.  Swan,   '. 

. 

6 

Coonrad  f.  Coonrad, 

156 

Cooper  V.  Bigbj', 

2V0 

V.  Davis, 

114, 

208 

V.  Farmers'  Ins.  Cc 

'J 

171 

V.  Gunn, 

317 

In  re, 

283 

V.  Martin, 

113 

V.  Whitney,    . 

111 

Coop\rood  V.  Bolton, 

228 

Cope  V.  Smith, 

. 

268 

Cope's  Appeal, 

243 

Copeland  v.  Crane,     . 

363 

Coppidge  V.  Threadgill, 

48, 

174 

Corbett  v.  Corbett, 

230 

Corbin  v.  Wilson, 

287 

Cordingly  v.  Cheeseborovic 

;h,  : 

00 

Corning  v.  Lowcrre, 

211 

V.  Troy  Iron  Fact 

iry,  • 

199 

Cornish  v.  Wilson,    254,  2 

55,  263 

272 

Cornwell  v.  Lee, 

310 

Cornwise  v.  Bourgum, 

286 

Corps  V.  Robinson, 

6 

Corry  v.  Caxton, 

153 

Corron  v.  Mellaudon, 

323 

Corson  v.  Mulvaney, 

82 

Cortleyen  v.  Hathaway, 

122 

353 

Cory  V.  Eyre, 

147 

Coster  V.  Clarke, 

316 

400 

V.  Griswold,     . 

198 

Cotheal  v.  Talmage,   . 

108 

Cottam  V.  Eastern  Countie 

3R.  R. 

'  Co., 

58 

Cotton  V.  Hart, 

151 

Cottrell's  Appeal, 

269 

Couch  V.  Terry, 

268 

Courtney  v.  Courtney, 

39 

Coutant  V.  Servoss,    . 

270 

Covell  V.  Doloff, 

114 

118 

Covenhovcn  (Case  of), 

292 

Coventry  v.  Chichester, 

105 

Cowden  v.  Covvden, 

248 

Cowden's  Estate, 

270 

Cowdin  V.  Cram, 

361 

Cowles  V.  Buchanan, 

303 

V.  Brown, 

186 

V.  Carter, 

19G 

356 

V.  Whitman,   , 

77 

C5wl3  V.  Cowls, 

283 

Cowman  v.  Hall, 

233 

V.  Kingsland, 

19 

Cox  V.  Corkcndall, 

263 

1'.  Coventon, 

84 

V.  Cox, 

86 

V.  Fenwick, 

128 

V.  Hickman, 

239 

RICAN    CASES. 

Cox  V.  McMullen, 

V.  Mayor  of  Griffin, 
V.  Peters,     .         ^ 
V.  Scott, 

V.  Williamson,     . 
V.  Wood, 
Craddock  v.  Cabiness, 
Cradock  v.  Owen, 
V.  Piper, 
Craft  V.  Lathrop, 
Craig  V.  Kitbridge, 

V.Leslie,  33,  42, 136, 
V.  Tappin, 
Craighead  v.  Wilson, 
Craik  v.  Clfwk, 
Cralle  v.  Meen, 
Cram  i'.  Green, 
Crandall  v.  Hoysradt, 

V.  Bacon, 
Crane  v.  Burntrager, 
V.  Conklin, 
V.  DeCamp, 
V.  Hewitt, 
Crapster  v.  Griffith,     . 
Crawford  v.  Summers, 
Crawley  v.  Poole, 

V.  Tiraberlake, 
Creager  v.  Brengle,    . 
Creaser  v.  Robinson, 
Creath  v.  Smith, 
Creed  v.  Lancaster  Bank, 
Crenshaw  v.  Anthony, 
Crest  V.  Jack,     . 
Crews  V.  Burcham, 

V.  Threadgill, 
Crittenden  v.  Brainard, 
Crocheron  v  Jaques, 
Crocker  v.  Crocker, 
V.  Higgins, 
Crockett  v.  Grain, 

V.  Maguire, 
Croft  V.  Arthur, 

V.  Moore, 
Cromer  v.  Pickney, 
Crompton  v.  Yasser, 
Cromwell  v.  Bank  of 
Cronise  v.  Clark, 
Crooker  v.  Crooker, 

V.  Jewell, 
Crosby  v.  Berger, 
V.  Huston, 
V.  Mason, 
Cross  I'.  Cheshire, 
V.  De  Vallc, 
V.  Hepuer, 
V.  Robinson, 
V.  Sprigg, 
Crossler  v.  Lightowler, 
Croton  Turnpike  v.  Ryder, 
Crouch  r.  Puryear, 


Pittsbu 


37, 


231 
338 
243 
360 
282 
128 
183 
,263 
61 
202 
168 
138,139 
110 
375 
113 
8,275 
258 
389 
197 
205 
14,  183 
111 
179 
233 
168 
309 
208 
269 
301 
417 
416 
153 
268 
202 
HI 
115 
37 
150 
304,312 
243 
153 
101 
269 
258 
77,  269 
irg,  1 1 5 
.  356 
.  243 
.  115 
6 
.  153 
.  205 
.  240 
202,  403 
.  Ill 
.  110 
.  106 
.  211 
.  811 
.  208 


10 


TABLE 

OF 

AMERICAN    CASES. 

X 

Ivu 

Crowder  v.  Clowes,    . 

105 

Darling  v.  Hammer,    . 

309, 

335 

Croxall  V.  Shererd,     . 

40 

Darrah  v.  McXair, 

50 

Cruger  v.  Halliday,    .     37, 

38,  39 

303 

Dashiel  i*.  Collier, 

233 

V.  Heyward,    . 

287 

Dashiell  v.  Att.-Gen. 

65 

Crumb,  Ex  parte, 

282 

Daughaday  v.  Paine, 

128 

Crutchfield  v.  Donelly, 

356 

Davenport  v.  Davenport,    . 

208 

Ex  parte, 

285 

David  V.  Grahame, 

. 

121 

Cryder's  Appeal, 

263 

Davidson  v.  Cowan,  . 

153 

Cuddle  r.  Rutter, 

77 

V.  Little,     . 

79, 

186 

Cudworth  v.  Hall's  Adm'r. 

40 

V.  Moss, 

179 

Cuff  V.  Borland, 

84 

I'.  Potts,      . 

301, 

302 

CuUison  V.  Bossom,    . 

.  12 

Davies  v.  Davies, 

297 

CuUum  V.  Bloodgood, 

222 

241 

Davis  V.  Christian,     . 

241 

r.  Casey, 

198 

V.  Clabaugh,    . 

320 

Cumberland  v.  Codrington 

V.  Davis,  . 

230 

26 

1,  265, 

274 

V.  Harkness,     . 

281 

286 

Cumberland  R.  R.  App., 

309 

V.  Harrison,     . 

303 

Cumming,  Re,    . 

293 

V.  Hoopes, 

194 

Cummins  v.  White,    . 

221 

222 

V.  Johonnot,     . 

285 

Cunningham  v.  Ashley, 

176 

V.  Mapes, 

308 

V.  Littlefield, 

240 

V.  Mayor,  &c.,  of  New  York 

356 

I'.  Rogers, 

415 

V.  Mikell, 

. 

269 

1'.  Rome  R.  R 

.  Co.j 

211 

V.  Reed,   . 

, 

210 

Currie  v.  Steele, 

188 

V.  Roberts, 

286 

Curry  v.  Larer, 

107 

V.  Rogers, 

168 

Curtis  V.  Curtis, 

283 

V.  Tiugle, 

. 

176 

V.  Lunn, 

151 

&  Brooks  V.  The  Brig 

Sen- 

V.  Mund, 

155 

eca, 

233 

r.  Tyler,  . 

310 

Davison  v.  Davison,  . 

. 

86 

Gushing  r.  Ayer, 

270 

V.  De  Freist, 

285 

Cushnej"  v.  Henry, 

37 

Davoue  v.  Fanning,     .        61 

309 

325 

Cutting  V.  Carter, 

208 

Daw  V.  Terrel,    . 

124 

Cuyler  r.  Bogart, 

's 

308 

Dawes  v.  Howard, 

. 

287 

I'.  Ensworth,  . 

269 

Dawson  v.  Dawson,    . 

37 

V.  Ferrill, 

230 

V.  Jay,  . 
V.  Lawes, 

282 
268 

Dabbs  V.  Dabbs, 

375 

V.  Lawrence, 

302 

Dabney  v.  Green, 

113 

Re,        .         .         . 

282 

Dackett  v.  Skinner,    . 

285 

V.  Williams, 

238 

Daggett  V.  Lane, 

184 

Day  V.  Roth, 

33 

Daily  o.  Litchfield,     . 

77 

312 

w.  The  State, 

3 

Daking  v.  Demming, 

227 

V.  Welles,    . 

198 

Dale  V.  Hamilton, 

28 

Deaderick  v.  Watkins, 

79 

174 

V.  McEvers, 

363 

Deal  V.  Bogue,   ,         .         ; 

243 

V.  Rosevelt, 

194 

Dean  v.  Dean,     . 

, 

128 

Dalzell  V.  Crawford,  . 

84 

156 

V.  Mitchell, 

233 

Dana  v.  Brown, 

321 

Dearborn  v.  Taylor,    . 

110 

Danbury  v.  Robinson, 

147 

Dearing  v.  Lightfoot, 

152 

Dandridge  v.  Minge,  . 

261 

Deas  V.  Harvie,  . 

19 

Danels  v.  Taggert, 

337 

Dcatly  V.  Murphy, 

183 

Danforth  v.  Lowry,    . 

51 

Deaver  v.  Eller, 

356 

V.  Smith,     . 

309 

V.  Erwin, 

198 

356 

Daniel  v.  Ballard, 

269 

De  Barante  v.  Gott,    . 

37 

V.   Joyner, 

270 

De  Beauvoir  v.  De  Beauvoir, 

138 

V.  Morrison's  Ex'rs 

.,     300 

,403 

Decamp  v.  Feay, 

90 

Daniell  v.  Mitchell,   . 

21,  191 

,397 

Decaters  v.  Le  Ray  de  Chaumont 

61 

Daniels  v.  Lewis, 

. 

86 

Deckard  v.  Case, 

241 

V.  Mowry, 

113 

Decker  v.  Hall, 

112 

114 

Darbey  v.  Whitaker, 

77 

V.  Miller, 

. 

390 

Darby  v.  Baine, 

. 

233 

Da  Godey  v.  De  Godey, 

356 

xlviii 


TABLE    OF    AMERICAN    CASES. 


De  Graffenreid,  Ex  parte,  . 

282 

Dickey  v.  Thompson, 

270 

Dering  v.  Earl  Wincbelsea, 

208 

269 

Dickinson  v.  Codwise, 

33 

De  Hart  v.  Baird, 

303 

V.  Dickinson,     . 

244 

Delloghton  r.  Monej-, 

314 

V.  Glennery, 

74 

Dehon  v.  Foster. 

194 

V.  Legare, 

2-iO 

Deibler  v.  Barwick,    . 

128 

Dickson  v.  Miller, 

40 

Deil's  Ex'rs.  v.  Roger,         .  - 

220 

V.  Montgomery,     . 

6 

5,  09 

De  Jarnette  v.  De  Jarnette, 

50 

Didicr  v.  Davison, 

340 

Delafield  v.  State  of  Illinois, 

, 

194 

Dietricschen  v.  Calburn,    . 

207 

Delanay  v.  McUonnell, 

111 

Digman  v.  McCollum, 

153 

De  Lane  v.  Moore, 

. 

153 

Dike  V.  Greene, 

77 

Delano  v.  Windsor,     . 

363 

Dill  V.  Shahan,  . 

108, 

402 

Delassus  v.  Posten,     . 

128 

Dillman  v.  Cox, 

101 

De  La  Yergne  v  Evertson, 

312 

Dilly  V.  Bernard, 

363 

Delaware  and  Maryland  R.  R.  Co. 

V.  Heckrotte, 

304 

V.  Stump, 

211 

Diman  v.  Providence  R.  R. 

Co.', 

171 

Deloney  v.  Walker,     . 

231 

Dimes  i-.  Steinberg,    . 

248 

353 

Delony  v.  Hutchinson, 

246 

Dimmock  v.  Bixbj',    . 

310, 

355 

De  Louis  v.  Meek, 

419 

Dinsmoor  i'.  Hazleton, 

12 

344 

Demarest  v.  Wynkoop,     115 

151 

173 

Disbrow  v.  Henshaw, 

283 

De  Mattos  v.  Gibson, 

81 

207 

Dixie  V.  Wright, 

144 

De  Meza  r.  Generis,   . 

110 

Dixon   Crucible  Co.  v.  Gug 

jen- 

Deming  v.  Colt. 

241 

240 

heim,      .... 

217 

Dennis  v.  Dennis, 

85 

108 

Dixon  V.  Gayfere, 

137 

V.  Green, 

350 

V.  Warters, 

232 

V.  Riley, 

389 

Dob  I'.  Ilalsey,    . 

239 

V.  McCagg, 

31 

Dobson  V.  Land 

118 

Dennison  v.  Goehring,    33,  40,  09 

100 

V.  Pearce, 

198 

Denny  v.  Branson, 

207 

208 

Dobyr.  Mitchell, 

46 

Dent  V.  Sumracrlin,    . 

356 

Dodd  V.  Seymour, 

77 

Denton  v.  Denton, 

360 

Doddington  v.  Hallet 

208 

V.  Graves, 

194 

Dodge  V.  Dodge, 

94 

V.  Jackson,     . 

321 

V.  Evans, 

128 

V.  MacNeil,     . 

177 

V.  Perkins, 

302 

V.  Stewart, 

91 

Dobson  V.  Simpson,   . 

251 

V.  Woods, 

230 

Doe  V.  Doe, 

202 

Depeyster  v.  Gould,   • 

33 

Doe  d.  Newman  v.  Rusham, 

146 

V.  Graves,  . 

196 

356 

Doebler's  Appeal, 

84 

De  Poe  V.  Sohlke, 

207 

Doggett  V.  Emerson,  . 

191 

Derbyshire  v.  Home, 

402 

Dorainickzj.  Michael,    84,88 

,  130 

379 

Derush  v.  Brown, 

233 

Donaldson  v.  Kendall, 

240 

Desborough  v.  Harris, 

203 

Donelson  Admr's.  v.  Posey, 

310 

Despain  v.  Carter, 

86 

Doner  v.  Stautfer, 

242 

243 

Deveau  v.  Fowler, 

, 

243 

DonncU  v.  Mateer, 

230 

De  Veney  v.  Gallagher, 

, 

210 

Donohoo  V.  Lea, 

141 

Devereaux  v.  Cooper, 

308 

344 

Doran  v.  Brazleton,    . 

301 

Devon  (Duke  of)  v.  Eglin, 

319 

Dorr  V.  Shaw,     . 

272 

Dewar  v.  Maitland,     . 

, 

96 

Dorsey  v.  Clarke, 

29 

Dewitt  V.  Ackerman,  . 

, 

230 

V.  Dorsey, 

01 

V.  Yates, 

104 

V.  Gilbert, 

285 

De  Wolf  r.  Mallett,     . 

312 

V.  The  Hagerstown  B 

fink. 

196 

Dexter  v.  Arnold,    227,  363, 

380, 

416, 

Doub  V.  Barnes, 

310, 

356 

417 

Dougan  v.  Blotcher,  . 

86 

Dey  V.  Dunham, 

111, 

153 

Dougherty  v.  Jones,  . 

379 

383 

Diamond  v.  Lawrence, 

157 

.    V.  Hampston,     . 

•  77 

Dias  V.  Bouchard, 

316 

320 

V.  McColgan,     . 

118 

Dick  V.  Pitchford, 

4 

J,  44 

V.  Yan  Nostrand 

244, 

246 

Dickenson  v.  Grand  Junctio 

1 

V.  Walters, 

399 

Canal  Co.,   . 

207 

Douglas  V.  Andrews, 

287 

Dickerson  v.  Commissioners 

198 

V.  Sherman,  . 

113, 

406 

TABLE    OF    AMERICAN    CASES. 


xlix 


Douglas  V.  Webster,   . 

96 

Douglass  V.  Wiggins, 

.     208 

Dow  V.  Jewell,    . 

.       33 

Dowdall  V.  Lenox, 

.     389 

Dowell  V.  Jacks, 

.     29 

0,  291 

Dower  v.  Fortner, 

.      191 

Dowle  V.  Saunders,    . 

.      151 

Dowling  V.  Betzemann, 

.       77 

Downer  i'.  Staine, 

311 

Downey  v.  Hotchkiss, 

.       86 

Downing  v.  Palmateer, 

121 

Downman  v.  Rust, 

156 

Dow's  Petition, 

285 

Dows  V.  Durfee, 

228 

Doyle  V.  Sleeper, 

101 

V.  Teas,     . 

151 

Dozier  v.  Edward, 

321 

V.  Lewis, 

268 

Drake  v.  Pell,     . 

136 

V.  Gooderidge, 

313 

V.  Symes, 

11 

Drane  v.  Gunter, 

37 

Draper  v.  Gordon,      .        1 

7,  40 

2,  403 

Drayton,  Ex  parte. 

292 

Matter  of,     . 

296 

Dresherr.  Allentown, 

230 

Dresser  v.  Dresser, 

30,  31 

Driver  v.  Driver, 

340 

Drope  V.  Jliller, 

376 

Drown  v.  Smith, 

208 

Drum  V.  Simpson, 

364 

Drumraond  v.  Drummond . 

324 

Drury  v.  Conner, 

28 

1,  363 

V.  Roberts,       .       1£ 

6,  24 

3,  356 

Drusadow  v.  Wilde,    . 

100 

Dryden  v.  Hanway,     . 

33 

Du  Bois  V.  Baum, 

88 

Dubourg  de  St.  Colombe's 

Heirs 

V.  The  U.  S.,  .      '  . 

222 

Dubs  V.  Dubs,     . 

44,  51 

Ducker  v.  Belt,   . 

39 

7,  416 

Dudley  v.  Bosworth,  . 

3 

i,  101 

V.  Matlack, 

128 

Dufossat  V.  Berens 

198 

Duffy  V.  Calvert, 

156 

V.  Masterton     . 

28 

Duncan  v.  Duncan,     . 

96 

V.  Hayes, 

211 

V.  Lyon, 

1 

9,  240 

V.  Mizner, 

312 

Duncombe  v.  Greenacre,    . 

48 

Dunham  v.  Jackson,  . 

360 

r.  Minard,    . 

231 

V.  Osborn,^  . 

233 

V.  Rogers,     . 

239 

V.  Winans,    . 

399 

Dunkley  v.  Van  Buren, 

117 

Dunlap  V.  Clements,  . 

19 

6,  356 

V.  Dunlap, 

26 

1,  263 

V.  Gibbs, 

303 

D 

Dunlap  V.  Mitchell,     , 
Dunn  V.  Cooper, 
V.  Olney,  . 
V.  Moore,  . 
V.  Sparks, 
Dunnien  v.  Coy, 
Dunning  v.  Stearns,  . 
Dunnock  v.  Dunnock, 
Dunseth  v.  Bank  U.  S. 
Dunwidie  v.  Kerley,   . 
Dupont  V.  Johnson,    . 
Duponti  V.  Massy, 
Dupuy  V.  Johnson,     . 
Durard  v.  Bacott, 
Durell  V.  Pritchard,   . 
Durette  v.  Briggs, 
Dusten  v.  Newcomer, 
Dutch  Church  v.  Mott, 
Duval  V.  Bibb,    . 
V.  Waters, 
Duvall  V.  Myers, 

V.  Waters, 
Duryea  v.  Burt, 
Dwight  V.  Pomeroy 
Dwinal  v.  Smith, 
Dyer  v.  Bean, 

V.  Clark,    . 

V.  Martin,  . 

V.  Potter,   . 
Dykers  v.  AVilder, 

Earl  V.  Dresser, 

V.  Halsey,   . 
Earl  Talbot  v.  Scott, 
Early  v.  Friend, 
Eastburn  v.  Kirk, 
Eastland  v.  Vanarsdel, 

V.  Amoskeag  Co 
Eastman  v.  Plumer, 
Eaton's  Appeal,- 
Eaton  V.  Benton, 

V.  Eaton, 

V.  Watts, 
Ebenhardt's  Appeal, 
Eberly  v.  Groff, 
Eckert  v.  Baeert, 
Eckford  v.  De  Kay, 
Eckman  v.  Eckman, 
Eddleston  v.  Collins 
Eddy  V.  Traver, 
Edelsten  v.  Edelsten, 
Edgar  v.  Donnally, 
Edleston  v.  Vick, 
Edmonds  v.  Crenshaw, 
Edmonds'  Appeal, 
Edmondson  v.  Welsh 
Edmonson  v.  Dyson, 
Edmunds  v.  Foley, 
Edrington  v.  Allsbrooke 
Edwards  v.  Atkinson, 


,       61 

309,  310 

272 

86 

269 

33 

221 

309 

233 

221 

287 

347 

268,  270 

168 

219 

128 

90 

84 

128 

210 

82,  86 

207,  208 
247 
168 

5 

363 

246 

128,  364 

389 

20 

288 
62 

208,  211 
230 

392,  402 

80 

214 

77 

26 

100 

196 

33 

271 

362 

323 

364 

363 

2,  403 

273 

212 

37 

217 

61,  153 

168 

233 

48 

10 

196 

86 


28 


40 


TABLE    OF    AMERICAN    CASES. 


Edwards  v.  Bonhannon,     . 

317 

Erskine  v.  Townsend, 

121 

V.  Burt, 

186 

Erwin  v.  Meyers, 

91 

V.  Handley, . 

84 

V.  Parham, 

79, 

174 

V.  Ferryman, 

356 

Eshleman  v.  Davis,     . 

33 

Exr's  V.Trumbull, 

123 

Eskridge  v.  McClure, 

128 

Egbert  v.  Brooks,       .         ^ 

61 

Eslava  v.  Lepetre, 

233 

Egberts  v.  Wood, 

241 

Espey  V.  Lake,    . 

184 

Egerton  v.  Brownlow 

42 

Espin  V.  Pemberton,  . 

157 

Eider  iJ.  Elder,    .         ,         . 

85 

Essex  V.  Berry,    . 

198 

Elderkin  v.  Fitch,       .         .      34 

7,  402 

Estill  V.  Clay,      . 

312 

V.  Shultz,     . 

317 

Eubank  v.  Poston, 

128 

Eldred  v.  Camp,          .         ,      19 

6,  356 

Evans  v.  Boiling, 

371 

Eldridge  v.  Eldridge, 

233 

V.  Duncan, 

257, 

272 

V.  Hill, 

199 

V.  Evans, 

233 

244 

V.  Smith,    . 

202 

V.  Goodlet, 

128 

Elias,  Matter  of. 

294 

V.  Jones, 

153 

Elkins  V.  Edwards,     . 

110 

V.  Kingsberry, 

90, 

136 

Ellard  v.  Cooper, 

275 

V.  Knorr, 

45 

EUerte  v.  The  Heirs  and  Legatees 

5 

V.  Tatem, 

395 

ofEllerte,    .         .         .         . 

287 

Everett  v.  Winn, 

317 

Ellicott,  V.  Carter, 

263 

Everitt  v.  Watts, 

338 

V.  Ellicott,     . 

302 

Everly  v.  Rice,  . 

196 

268 

356 

V.  Warlord,   . 

355 

Evertson  v.  Booth,     . 

272 

400 

EUingwood  v.  Stevenson,  . 

360 

V.  Tappen,   . 

233 

Elliot  V.  Morris, 

28 

Ewell  V.  Tidwell, 

248 

Elliott  V.  Adams, 

193 

Ewing  V.  Blight, 

352 

V.  Armstrong, 

33 

Eyre  v.  Countess  of  Shaftesbury, 

281 

V.  Carter, 

263 

V.  Eyre, 

86 

V.  Maxwell, 

111 

V.  Golding, 

103 

V   Merryman,  . 

156 

V.  Potter,   . 

174, 

176, 

303 

V.  North    Eastern    R.   R. 

Eyrick  v.  Hettrick, 

37 

Company, . 

210 

Eyton  V.  Mostyn 

196, 

356 

V.  Pool,  .          .         .         . 

61 

V.  Waring,      .         .        4 

8,  317 

Fabre  v.  Colden, 

48 

Ellis  v.  Ellis,      . 

31,  86 

Fairbanks  v.  Bloomfield 

• 

110 

V.  Paige,     . 

263 

Fairchild  v.  Valentine, 

220 

V.  Woods,    . 

45 

Falcke  v.  Gray,  . 

77,  79 

Ellison  V.  Commissioners,  . 

211 

Fall  River  Whaling  Company  v. 

V.  Daniels, 

114 

Borden    . 

243 

V.  Moffat, 

227 

Fallon  V.  R.  R.,  . 

81 

Ellsworth  V.  Curtis,    . 

333 

Fancher  v.  Ingraham, 

335 

Elmedorf  V.  De  Lancy, 

312 

Fant  V.  Miller,    . 

20,  21 

Elrod  V.  Lancaster,     . 

61 

Farina  v.  Silverlock,  . 

217, 

378 

Elwood  V.  Diefendorf, 

269 

Farringer  v.  Ramsey, 

33 

Ely  V.  McKay,     . 

82 

Farley  v.  Blood, 

202, 

206 

Emanuel  v.  Bird, 

243 

V.  Bryant, 

168, 

363 

364 

Emerson  v.  Udoll, 

198 

V.  Goocher, 

111 

Emmons  v.  Bradley,   . 

272 

Farmers'  Bank  v.  Vanmeter, 

198 

V.  Kiger, 

88 

Farmers'  &  Mechanics' 

Bank  v. 

Endicott  v.  Penny,     . 

19 

Griffiith, 

346 

Engel  V.  Schewerman, 

198 

Farnham  v.  Clements, 

33 

English  V.  Foxall, 

309 

Farnsworth  v.  Childs, 

153 

V.  Lane, 

111 

Farnum  v.  Bennett,    . 

110 

V.  Russel, 

128 

Farrar  v.  Haselden,    . 

258 

Enos  V.  Hunter, 

33 

Farrell  v.  McKee, 

363 

Ensley  v.  Balentine,    . 

33 

V.  Parlier, 

113 

Ensworth  v.  Lambert, 

315 

Fassett  v.  Traber, 

270, 

272 

Enthoven  v.  Cobb, 

15 

Faulkner  Adm'x  v.  Harwood 

19 

Eppes  V.  Randolph,     . 

269 

Fausler  v.  Jones, 

33 

Erickson  v.  Willard,  . 

31 

Fay  V.  Noble,      . 

239 

TABLE    OF    AMERICAN    CASES. 


u 


Fearns  i'.  Young, 

61 

Fears  v.  Brooks, 

44,  46 

Feidler  v.  Diirrin, 

111 

Felcli  V.  Hooper, 

20 

Felder  v.  Davis, 

310 

Fellows  V.  Tann, 

44 

Fells  V.  Read,      . 

77 

Fentis  v.  Robins, 

198 

Feuwick  v.  Macey, 

115 

Fenwicke  v.  Gibbes,  . 

379 

Ferguson  v.  Davol  Mines,  . 

217 

Ferguson  v.  Fisk, 

194 

V.  OHarra, 

33 

i,  339 

V.  Wilson,  . 

77 

Ferris  v.  Irving, 

81 

Field  V.  Arrowsmith, 

37,  61 

V.  Eaton,    . 

92 

V.  Evans     . 

45 

V.  Jones,     . 

355 

V.  Moore,    . 

289 

V.  Schieffelin,     .        17, 

25 

1,  402 

V.  Wilson,  . 

303 

Filley  v.  Fassett, 

217 

Filman  v.  Divers, 

33 

Finch  V.  Houghton,     . 

121 

V.  Shaw,   . 

162 

Findlay  v.  Smith, 

,     208 

Findlay's  Ex'r  v.  U.  S.  Bank, 

.     272 

Finley  v.  Aiken, 

77 

V.  Bank  U.  S., 

315 

Lessee  of,  v.  Riddle, 

40 

Firmstone  v.  De  Camp, 

168 

Firth  V.  Ridley,  . 

81 

Fish  V.  Lightner, 

77 

V.  Miller,     . 

338 

V.  Rowland, 

317 

Fisher  v.  Boody,          .      176, 

17 

7,  303 

V.  Fields,  . 

28 

V.  Johnson, 

129 

I'.  Kay,      . 

90 

V.  Moolick 

77 

V.  Tucker, 

240 

Fisk  V.  Sarber,   . 

61 

Fitch  V.  Weber, . 

138 

Fitzpatrick  v.  Featherstone, 

77,  84 

V.  Nolan, 

81 

Fitzsimmons  v.  Goslin, 

177 

Fitzsimons  v.  Fitzsimons,  . 

96 

Flagg  V.  Mann,  9,  15,  28,  123, 

15 

I,  158, 
162 

Flavell  V.  Harrison,     . 

.     217 

Fleeson  v.  Nicholson, 

.     233 

Fleming  v.  Beaver, 

.     269 

V.  Buchanan, 

S 

9,  263 

V.  Burgin,     . 

.     153 

V.  Donahoe,  . 

.        28 

V.  Gilmer,     . 

.     310 

V.  McHall,     . 

.       33 

Flemyng  v.  Hector,     . 

.     239 

Fletcher  v.  Asbburaer, 

13 

6,  137 

Fletcher  v.  Holmes,    . 

V.  Wilson, 
Flint  V.  Clinton  Co.,  . 

V.  Warren, 
Florence  v.  Hopkins, . 
Flowerton  t'.  Wimbushj 
Floyd  V.  Barker, 
Fluck  V.  Replogle, 
Fog  V.  Johnstone, 
Fogg  V.  Rogers,  . 
Foley  V.  Hill,      . 
Folk  V.  Beidelham, 
Follansbee  v.  Kilbreth, 
Foltz  V.  Pourie  &  Dawson, 
Fonda  v.  Penfield, 

V.  Jones, 
Fountain  v.  Ravenel, 
Foot  V.  Webb,     . 
Forbes  v.  Whitlock, 
Ford  V.  Gaithur, 

I'.  Irwin, 
Forde  v,  Herron, 
Fordham  v.  Wallis, 
Fordice  v.  Bridges, 
Foreman  v.  Murray, 
Forkner  v.  Stuart, 
Forman,  In  re,    . 

V.  Rodgers, 
Forsythe  v.  McCreight, 
Fort  V.  Ragusin, 
Foss  V.  Haynes,  . 
Foster  v.  Alston, 

V.  Burem, 

V.  Cook,    . 

V.  Crenshaw's  Ex'rs 

V.  Goddard, 

V.  Gordon, 

V.  Handley, 

V.  Reynolds, 

V.  State  Bank, 

V.  Trustees, 
Fourniquet  v.  Perkins 
Foust  V.  Moorman, 
Fowle  V.  Lawrason,  . 
Fowler  v.  Fowler, 
Matter  of, 
V.  Saunders, 
Fraim  i'.  Frederick, 
Franklin  Mill  Co.  v.  Schmidt, 
France  v.  France, 
Francis  v.  Love, 
Franklin  v.  Osgood, 
Frazer  v.  Legare, 
Frazier  v.  Brownlow, 

V.  Frazier, 

Frederick  v.  Haas, 

Freeland  v.  Cocke, 

V.  Dasey, 

V.  Heron, 

V.  Stansfield 


128, 


11 


114 

403 

37 

32 

230 

313 

32 

117 

240 

310 

20 

150 

33 

19 

57 

128 

65 

77 

321 

263 

111 

246 

269,  275 

30 

286 

1,  241 

290 

317 

198 

23 

310 

280 

404 

309 

274 

386 

233 

254 

110 

198 

33,  269 

386 

230 

220 

168 

293 

303 

151 

197 

356 

88 

309 

312 

46 

32 

33 

227 

250 

228 

243 


lii 


TABLE    OF    AMERICAN    CASES. 


Freeland  v.  Wilson,    . 

203 

Gannett  v.  Blodgett,  . 

,     270 

Freeman  v.  Curtis, 

1«8, 

191 

Gano  V.  Gilruth, 

233,  234 

V.  Elinendorf, 

196, 

356 

Gans  V.  Renshaw, 

85 

V.  Flood, 

45 

Ganse,  Matter  of. 

.     293 

V.  Freeman, 

86 

Garden  v.  Ingram, 

.     118 

V.  Hartman, 

180 

Gardenhire  v.  Hinds, 

.       45 

V.  Harwood, 

61 

Gardiner  v.  Dering,    . 

.     208 

V.  Kelly,       . 

33 

Gardner  v.  Emerson,  . 

.     113 

Freetly  v.  Barnhart,   . 

84 

V.  Gardner,   . 

.     156 

Frelick  v.  Truuer, 

286 

V.  Newburgli 

.     211 

French  v.  French, 

183 

Garfield  v.  Hatmaker, 

.       33 

V.  Royal  Company, 

157 

Garland  v.  Bowling,  . 

.     174 

V.  Shotwell,    . 

338, 

339 

V.  Loving,     . 

.     285 

Freto  V.  Brown, 

287 

Garner  v.  Garner, 

40,  42 

Friley  v.  Hendricks,    . 

417 

V.  Keaton, 

.     346 

Frink  v.  Lawrence,     . 

211 

V.  Lyles, 

.     258 

Fripp  V.  Fripp,    . 

79 

Garnett  v.  Macon,  79,  88,  1 

J6,  251,261 

Frisby  v.  Ballance,     . 

7T,  84,  85 

Garr  v.  Bright, 

.     313 

Frith  V.  Cartland, 

57,  60 

221 

V.  Drake,    . 

.     379 

Frizzle  v.  Patrick, 

211 

Garrard  v.  Frankel,    . 

.     168 

Fronty  v.  Fronty, 

186 

Garretson  v.  Vanlon, 

.       88 

Frost  V.  Beekman, 

151 

V.  Weaver, 

.     243 

In  re, 

297 

Garrett  v.  Garrett, 

.       33 

Frothingham  v.  McKusic,  . 

114 

V.  Lynch, 

.     196 

V.  Stacker, 

153 

V.  White, 

.     230 

Frye  v.  Bank  of  Illinois,     . 

114 

V.  Wilkinson, 

.     101 

Fuller  V.  Benjamin,     . 

321 

Garson  v.  Green, 

.     128 

V.  Yates,  . 

94 

Garth  v.  Cotton, 

.     208 

Fulwood  V.  Bashfield, 

269 

Gartland  t;.  Nunn, 

.     314 

Furlong  v.  Edwards,  . 

352, 

356 

Garton  v.  Bates, 

.     235 

Furman  v.  Clark, 

81 

Carton's  Heirs  v.  Bates,     . 

.     303 

V.  Fisher, 

31,  37 

Gartside  v.  Outrame, 

6 

Furnam  v.  Coe,  . 

57 

Gary  v.  Cannon, 

.     268 

Futrell  V.  Futrell, 

183 

Gas  Company  v.  Broadben 
Gass  V.  Mason,            .  ' 

t,       .     211 
.     183 

Gable  v.  Daub,  . 

92 

V  Stinson, 

.     371,  379 

Gadsden  v.  Carson,     . 

243 

V.  Wilhite, 

65,  67 

V.  Lord, 

269 

Gate  V.  Adams, 

.     267 

Gafney  v.  Reeves, 

373 

Gatewood  v.  Rucker, 

.     317 

Gage  V.  Brewster, 

113 

Gay  V  Ballou,     . 

.     287 

Gaines  v.  Chew, 

248, 

310 

V.  Hamilton, 

.     Ill 

V.  Spann, 

280 

Gayle  v.  Singleton,     . 

.     346 

Gaither  v.  Gaither,     . 

248 

Gearhart  v.  Jordan,     . 

.     267,  272 

Galbraith  v.  Gedge,    . 

233 

Geisser  v.  Beall, 

.     312 

Galdsborough  v.  Ringgold 

• 

168 

Gelston  vrHoyt, 

18,  19 

Gale  V.  Archer,  . 

82 

V.  Sigmund, 

.     207 

Gallagher  v.  Fayette  Co. 

R.  R.', 

207 

Genet  v.  Beekman, 

.       42 

Gallagher's  Appeal,   . 

263 

Gentry  v.  Rogers, 

.       82 

Gallatian  'v.  Cunningham, 

17 

232 

George  v.  Kent, 

.     151 

V.  Erwin,     . 

17 

403 

V.  Strange, 

.     198 

Gallatin  v.  Pilot, 

268 

V.  Wood, 

.     270 

Gallego's  Ex'rs  v.  Attorney- 

-Gen- 

George's  Creek  Coal  Comj 

>any  v. 

eral, 

65 

Detmold, 

.     210 

Galloway  v.  Hamilton's  Heirs,   . 

129 

Gerkeu's  Estate, 

.     275 

Galphin  v.  McKinney, 

316 

Gernon  v.  Boecaline, 

•     300 

Gait  V.  Calland, 

240 

Gevers  v.  Wright's  Exr's., 

.       42 

V.  Jackson, 

111 

Gibbes  v.  Cobb, 

.     153 

Gammon  v.  Freeman, 

233 

Gibbs  V.  Clagett, 

.     310 

V.  Howe, 

107 

V.  Marsh, 

.       30 

Sanetson  v.  Weaver, 

243 

Gibler  v.  Trimble, 

.     159 

TABLE     OF    AMERICAN     CASES. 


liii 


Gibson  v.  Bailey, 

. 

121 

V.  Broadfoot, 

192 

V.  Foot, 

27,  33 

V.  Goltltwaite, 

203 

205 

V.  McCormick, 

261 

263 

V.  Tilton, 

196, 

356 

Gifford  V.  Xew  Jersey  R.  R 

.  Co., 

321 

V.  Tliora, 

, 

174 

Gilbert  v.  Carter, 

33 

V.  ChapiD, 

31 

V.  Colt,  . 

360 

V.  Gilbert, 

168 

V.  Lewis, 

, 

45 

V.  McEachen, 

, 

286 

V.  Mickle, 

, 

211 

V.  Hosier, 

363 

V.  Sutliff, 

314 

V.   Trustees   of   th 

i  East 

Newark  Co.,    . 

87 

Gilkey  v.  Paige, 

, 

344 

Gill  V.  Lyon, 

270 

V.  McAtee,  . 

, 

153 

Gillespie  v.  Moon, 

85, 

168 

I'.  Somerrille, 

233 

Gillett  V.  Hall,    . 

240 

Gillis  V.  Hall,      . 

77 

Gilman  v.  Brown, 

128 

V.  Hamilton, 

, 

69 

V.  Hidden, 

. 

121 

Gilmore  v.  Gilmore,   . 

, 

379 

V.  N.  A.  Land  Co., 

243 

V.  Patterson, 

, 

363 

Gilroy  v.  Alis,     . 

84 

Gist  V.  Frazier, 

174 

Givens  v.  Campbell, 

197 

V.  MeCalmont, 

118 

Glass  V.  Hulbert, 

168 

Glasscock  v.  Glasscock,     . 

128 

I'.  Minor,    . 

177 

Glaze  V.  Drayton, 

. 

81 

Gleaves  v.  Paine, 

, 

47 

Glenn  v.  Fowler, 

194 

V.  Grover, 

308 

363 

V.  Randall, 

21 

363 

Glenorchy  v.  Bosville, 

40 

Gloninger  v.  Hazard, 

226 

Glover  V.  Fisher, 

87,  88 

Goddard  v.  Gardner, 

6 

V.  Lawyer,   . 

110 

Godwin  v.  Yonge, 

168 

Golden  v.  Maupin, 

235 

Goldsmith  v.  Berthold, 

239 

V.  Guild,  . 

88 

Goltra  V.  Lanasack,    . 

168 

Gomez  v.  Tradesman's  Ban 

k,       28,  33 

Gompertz  v.  Pooley,  . 

194 

Good  V.  Burton, 

126 

Goodall  V.  Little, 

•       6j 

7,  17 

Goodburn  v.  Stevens, 

233 

Goodhue  v.  Barnwell, 

281 

Goodrich  v.  Friedersdorff,  .     118 

V.  Pendleton,    337,  339,  340 

Goodson  V.  Ellison,    ...       38 

Goodwin  v.  McGehee, 

Goodwyn  v.  State  Bank, 

Gordon  v.  Atkinson, 

V.  Gordon, 

V.  Graham, 

V.  Green, 

V.  Stevens, 

V.  Watkins, 

Gore  V.  Bowser, 

V.  Gibson, 

V.  Pettis,    . 

Gorham  v.  Gorham, 

Goss  V.  Lester,  . 

Gossin  V.  Brown, 

Gott  V.  Cook, 

Gough  V.  Crane, 

V.  Pratt, 

Gould  V.  Gould, 

V.  Hayes, 

V.  Winthrop, 

V.  Womack, 

Goundie  v.  Northampton  C 

Gourley  v.  Woodburj^, 

Gouveneur  v.  Elmendorff, 

Gouverneur  v.  Lynch, 

Governor  v.  McEwen, 

Gowan  v.  JeflFries, 

Gracie  v.  Freeland,     . 

Graeff  «.  De  Turk,      . 

Graff  V.  Castleman,    . 

Graham  v.  Davidson, 

V.  Hackwith, 

V.  Lambert, 

V.  Little, 

V.  Pancoast, 

V.  Samuel, 

r.  Tankersley, 

Graham's  Appeal, 

Grant  v.  Duane, 

V.  Davenport, 
V.  Grant, 
V.  Quick, 
V.  U.  S.  Bank, 
Graser  v.  Stelhvagen, 
Gratz  V.  Cohen, 
Graves  v.  Dugan, 
Gray  v.  Downman, 
V.  Gray,     . 
V.  Haig,     . 
V.  Jenks,    . 
V.  Regan, 

V.  Washington,  .         .     a::i 

Graydon  v.  Gray  don,  .      230,  231 

Great  Falls  Co.  v.  Worster,         .     117 
Great  Northern  R.  R.  Co.  v.  Man- 
chester R.  R.  Co.,        .         .     207 
Greedy  v.  Lavender,  .         .       49 


.     157 

196,  356 

33,  138 

.     179 

.     110 

.       28 

94 

.       23 

6 

.     183 

.     302 

.     290 

.     272 

.     269 

.     136 

.       86 

.     198 

.      248 

0,  314,  315 

.      261 

.       77 

o.,     .     150 

.     230 

176,  303 

.     270 

.     222 

.     243 

.     397 

.     186 

251 
58 

167 
.  ■  58 
.  183 
.  183 
.  153 
402,  403 
.  232 
.  113 
,  353 
.  36 
.     194 

163 

241 
.  183 
.  33 
.  173 
.  392 
.  403 
.  110 
334,  335 


151, 


84, 


20,  62, 


liv 


TABLE    OF    AMERICAN    CASES. 


15 


Green  v.  Butler, 

V.  Carey, 

V.  Coorland, 

V.  Demoss, 

V.  Drinker, 

V.  Givan, 

V.  Goodall, 

V.  McKinney, 

V.  Morris  and  Essex  R.  R 
Co., 

V.  Oakes, 

V.  Phillips, 

V.  RamagCj 

V.  Slayter, 

V.  Thompson, 

V.  White, 

V.  Winter, 
Greenawalt  v.  Kreider, 
Greene  v.  Greene, 
Greenin  v.  Hoey, 
Greenleaf  t;.  Qneen, 
Greenon  v.  Hoey, 
Greenway  v.  Greenway, 
Greenwood  v.  Broadhead, 
Greer  v.  Caldwell, 
Gregory  v.  Mighell,    . 
V.  Murrell,    . 
V.  Valentine, 
Gregory's  Exr's,  v.  Forreste 
Gresley  v.  Mousley, 
Gretton  v.  Haward, 
Greville  v.  Browne, 
Gridley  v.  Dole, 
GrifSn  v.  Cnnningham, 

V.  Blanchar, 

V.  Graham, 

V.  Morrell, 
Griffith  V.  Beecher, 
V.  Coleman, 
V   Cope, 

V.  Frederick  Co.  Bank 
V.  Griffith, 
V.  Phillips, 
V.  Ricketts, 
Griggs  V.  Thompson, 
Grim  v.  Wheeler, 
Grimes  v.  Hoyt, 
Grirastone  v.  Carter, 
GriswoldT.  Smith, 
Gritton  v.  McDonald, 
Groce  v.  Field, 
Groesbeck  v.  Seeley, 
Gross  V.  Leber, 
Grosvenor  v.  Austin, 
Groton  v.  Roxborough 
Grove  v.  Brien,  . 

V.  Fresh, 

V.  Potter, 
Grover  v.  Flye,  . 

V.  Hall,  . 


112 
12 
88 
128 
153 
147 
181 
312 


168 

215 

196,  356 

270 

1,  157 

183 

157 

59,  61 

268 

233,  246 

196 

55 
356 
136 
243 
168 

77 
260 
413 
227 
184 

92 
263 
240 

84 
128 

65 
309 
141 
313 

67 

77 

37,  157 

.     232 

31,  139 

335 

344 

175 

153 

153 

128 

418 

33 
168 
243 
114 
270 
310 
311 
110 
227 


Groves  v.  Fulsome, 
Grubb's  Appeal, 
Guard  v.  Bradley, 
Guerard  v.  Gaillard, 
•Guerryt>.  Durham, 

V.  Ferryman, 
Guion  V.  Knapp, 
Gully  V.  Crego, 
Gum  V.  Hanison, 
Gump's  Appeal, 
Guthrie  v.  Gardner, 
Guthrie's  Appeal 
Gwin  V.  Melmoth, 


.  331 
.  247 
.  81 
.  298 
329,  356,  419 
417,  418,  420 
.  270 
.  31 
.  199 
.  168 
33,  101 
.  297 
.  211 


Adm's 


107 
151 
61 
.  '  67 
.  128 
.  110 
250,  315 
.     350 


Hackett  v.  Alcock, 
Hackwith  v.  Damson 
Haddix's  Heirs  v.  Haddix's 
Hadley  v.  Hopkins,     . 

V.  Pickett, 

Hadlock  v.  Bullfinch, 

Hagan  v.  Walker, 

Hagill  V.  Curril, 

Hagthorp   v.  Hook,  8,  118,   151,  308, 

344,  363 

Hahn  v.  Hart,     ....     198 

Haight  V.  Bnrr,  .         .         .     352 

V.  Childs,         .         .         .       8e 

V.  Morris,        .         .         .     363 

Haigood  v.  Wells,       .         .         .     286 

Haines  v.  Beach,         .         .         ,     315 

V.  Ellis    ....       46 

V.  O'Conner,   .         .         .33 

Halbert  v.  Grant,         .         .         .     310 

Haldeman  v.  Haldeman,     .         .     240 

Hale  V.  Hale,       .         ,         .         .221 

V.  Henric,  .         .         .     246 

V.  James,    ....     233 

Haley  v.  Baglej,  .         .         .315 

Haleyburton  v.  Kershaw,    .         .     261 

Hall's  Ex'rs.  v.  Click,  .         .     128 

Hall  and  Wife  v.  Hall  et  al.,       .       86 

V.  Hall,  92,  94,  121,  243,  274,  312 

V.  Hinds,      ....     193 

V.  Jones,      ....     128 

V.  Piddock,  .         .         .     230 

V.  Read,       ....     168 

V.  Ross,        ....       84 

V.  Stewart,  .         .         .     240 

V.  Thompson,      .         .         .177 

V.  Towne     ....     121 

V.  Warren,  ....       67 

Hallet  V.  Collins,         .         .         .162 

V.  Thompson,    ...       42 

Hallett  V.  Hallett,        .         .     258,  320 

Halo  V.  Schick,  .         .         .111 

Halstead  v.  Rabb,        .         .         .221 

Halsted  v.  Meeker's  Ex'rs.,  .       56 

Ham  ?'.  Goodrich,        ...       86 

Hamberlin  v.  Ferry,  .         .         .     248 

Hamblin  V.  Dinneford,         .       81,207 


TABLE    OF    AMERICAN    CASES. 


Iv 


Hambrook  v.  Smith,  . 
Hamilton  v.  Hamilton, 
V.  Hughes,  . 
V.  Lockhart, 
V.  Marks,     . 
V.  Neel, 
t'.  Nutt, 
V.  Rogers,    . 
V.  Whetridge, 
Hamlin  v.  Bridge, 
I'.  Hamlin, 
Hammer  r.  McEldowney, 
Hammersly  v.  Barker, 
t'.  Smith, 
Hammond  v.  Hammond, 
V.  Mich.  State 
Hampton  ik  Le%'.v, 
Harasberger  v.  Kinney, 
Hanberger  v.  Root, 
Hancock  v.  Day, 
Handley  v.  Fitzhugh, 
Hanison  i'.  Sterry, 
Hanks,  Matter  of, 
Hanna  i'.  Spotts, 
V.  Ratekin, 
Hannahan  v.  Nichols 
Hanson  v.  Field, 

V.  Keating, 
Harbers  v.  Gladsen, 
Harbison  v.  Lemon, 
Harcum  v.  Hadnall, 
Hardeman  v.  Berge, 
Harden  v.  Miller, 
Harder  v.  Harder, 
Hardin  v.  Baird, 
Harding  v.  Glyn, 
V.  Handy, 
I'.  Randall, 
Hardwick  v.  Hook, 
Hardy  v.  Hawkashaw, 

V.  Sproule, 
Hare  v.  Deusen,  . 
Hares  v.  Stringer, 
Hargrave  v.  Hargrave 
Haring  v.  KauflFman, 
Harkness  v.  Fraser, 

I'.  Remington 
Harlan  v.  Wingates, 
Harland  v.  Binks, 
Harland's  Account, 
Harmer  v.  Gooding, 
V.  Gwynne, 
Harper  v.  Archer, 
V.  Phelps, 
V.  Reno, . 
I'.  Williams, 
Harper's  Appeal, 
Harrington  v.  Brown 
V.  Slade, 
Harris  v.  Arnold, 


Bank 


5 
240 
233 
303 
203,  205,  206 
6 
153 
110 
211 
313 
168 

77 
392 

44 
103 
310 
269 
198 

90 
268 
221 
241 
292 
281 


360 
303 
47 
90 
84,  183 
136,  137 
192 
335 
33 
28 
31 
191,  303 
177 


183, 


15 


11 


364 
139 
268 
128 
318 

82 
324 
184 

78 
363 

31 
287 
320 
199 

33 

31 
1,  153 
128 
1,  118 

61 
408 
153 


Harris  v.  Carter, 

151 

V.  Harlan, 

128 

V.  Knickerbacker,     . 

86 

V.  Sangston, 

356 

V.  Smith,  . 

84 

V.  Thomas, 

208 

V.  Tyson,  . 

178 

V.  Williams, 

389 

Harrisburg  Bank  v.  Tyler, . 

33 

Harrison  v.  Deramus, 

91 

V.  Guest, 

174 

V.  Harrison, 

31,  3c 

t,  47 

V.  Long, 

221 

V.  Mennomy, 

28 

V.  Mock, 

57 

V.  Nettleship, 

194 

V.  Rowan,    . 

376 

V.  Rush, 

375 

V.  Town, 

79 

V.  Tuberville, 

168 

Harrold  v.  Lane, 

33 

Hart  V.  CofiFee,     . 

319 

V.  Farmers'  Bank, 

54, 

153 

V.  Freeman, 

20,  21 

i>.  Hart, 

. 

86 

V.  Hawkins, 

246 

V.  Mayor  of  Albany, 

210, 

211 

V.  McKeen, . 

310 

V.  Ten  Eyck, 

:       57, 

379 

Hartshorn  v.  South  Readin 

g,      • 

211 

Hartshorne  v.  Cuttrell, 

193 

V.  Hartshorne, 

233 

Harvard  College  v.  Soc.  fo 

r  pro- 

motingTheological  Educ 

atioQ, 

313 

Harvey  v.  Alexander, 

364 

V.  Foley, 

268 

Harwood  i-.  Kirby, 

230 

Haskell  v.  Haskell, 

9 

Hassara  v.  Day,  . 

230 

Hassanclever  v.  Tucker, 

263, 

274 

Hassard  v.  Rowe, 

285 

Hassel  v.  Hawkins, 

.105 

Hasting's  Case,  . 

272 

Hatcher  v.  Hatcher,    . 

86 

270 

Hathaway  v.  Foy, 

202 

Hattier  v.  Etinaud, 

192 

Hatton  V.  Weems, 

61 

Haughty  v.  Strang,     . 

198 

Haughwout  t'.  Murphy, 

128 

Hauser  v.  Shore, 

156 

Havens  v.  Hassey, 

241 

V.  Havens, 

94 

V.  Sackett, 

94 

Havrell  v.  Ellsworth,  . 

211 

Hawkes  v.  Hubback,  . 

44 

Hawkins  v.  Clermont, 

335 

V.  Gathercole, 

7 

r.  Hawkins, 

364 

V.  King, 

110 

Hawley  v.  Clowes, 

.     208 

210 

Ivi 


TAULE    OF     AMERICAN    CASES. 


Hawley  v.  Cramer,      .        01,  151, 
V.  James,  22,  5Y,  61,  136, 

V.  Mancius,     .         .       61, 

V.  Sheldon, 

V.  Wolverton, 

Hawralty  v.  Warren,  ,       82, 

Hay  V.  Marshall,  .         .      220, 

Haydon  v.  Goode, 

Hayes  v.  Caldwell, 

V.  Heyer,  . 

V.  Johnson, 

V.  Ward,  . 

Haynesw.  Forshaw, 

V.  Kershow, 

Hays,  Ex  parte,  . 

V.  Hall,     . 

V.  Heidleburg, 

V.  Jackson,        .         .      263 

V.  Thode,  . 

V.  Wood,  . 

Hayward  v.  Carroll,    .         .        20, 

V.  Purssey, 
Haywood  v.  Cope, 

V.  Hutchins 
V.  Judson, 
Hazen  v.  Thurber  et  al 
Head  v.  Muir, 
Headley  v.  Goundry, 
Heard,  Ex  parte, 
Heath  v.  Wright, 
Heathcote».The  North  Stafford 

shire  R.  R.  Co., 
Hebburn  v.  Snyder, 
Heciiard  v.  Sayre, 
Hedges  r.  Riker, 
Hedrick  v.  Hearn, 
Heeney,  Matter  of. 
Heirs  of  Holman  v.  Bank  of  Nor 

folk, 
Heist  V.  Baker,   . 
Hellen  v.  Crawford, 
Heller,  Matter  of, 
Helling  v.  Lambey, 
Helm  V.  Darby,   . 
Helms  V.  Franciscus 
Hemming  I'.  Swinnerton, 
Hemiup,  Matter  of,     .      261,  38 
Henderson  v.  Ardery, 

V.  Burton,  .     128, 

V.  Dennison, 
V.  Dickey, 
V.  Hays,     . 
V.  Lowry,"  . 
Hendricks  v.  Robinson, 
Hendrickson  v.  Hinckley 
Hendrix  v.  Money, 
Henn  v.  Walsh,  . 
Hennessy  v.  Andrews, 
Henry  v.  Compton 


312 
138, 
233 
272 

82 
306 
168 
222 
275 
3 
356 
203 
268 
251 

78 
286 

81 

95 
275 
153 
270 
304 
303 

77 
220 
231 
233 
192 
106 
282 
217 

194 
128 

88 
285 

86 
297 

310 
128 
268 
296 

85 
259 
364 
193 
392 
106 
254 
336 
169 

77 
121 
303 
198 
320 
243 
153 
270 


Henry  v.  Henry,  .    .    •    .  306 

V.  Liles,  ....   84 

V.  Morgan,    .    .    .157 

Henshaw  iJ.  Wells,   .    .    .  114 

Hensman  v.  Fryer,   .    .    .  275 

Henson  v.  Ott,  ....  141 

Hepburn  v.  Auld,         .         .  84,  88,  90 

V.  Carts,        .         .         .240 

V.  Dunlop,    ...       84 

Herbert  v.  Schofield,  .         .         .128 

V.  Wren,         .         .         .233 

Herr  v.  Bierbower,      .         .         .     208 

Herrick  v.  Blair,  .         .         .     192 

Herron  v.  Williamson,         .         .       51 

Hertell «;.  Bogert,         .         .         .251 

Hester  v.  Wilkinson,  .         .         .     286 

Heth  v.  Cocke,    .         .         .         .233 

Hetherington  v.  Clarke,      .         .151 

Hewett  V.  Loosemoor,  .         .     150 

V.  Sturdevant,  .     241,  268 

Hewlett  V.  Hewlett,     .         .         .198 

Heyward  v.  Cuthbert,  .         .     287 

Hickling  t;.  JBoyer,       .         .         .     261 

Hickman  v.  Cooke,     .         .         .310 

V.  Grimes,    ...       78 

V.  McCurdy,  .         .     268 

*v.  Perrin,      .         .         .     153 

V.  Stout,        .       220,  222,  303 

Hickox  V.  Lowe,  .         .         .     Ill 

Hidden  v.  Jordan,        .         .         .     118 

Hiester  v.  Green,         .         .         .     128 

V.  Madeira,     .         .         .Ill 

Higdon  V.  Heard,         ...         3 

Higgins  V.  Joice,  .         .         .179 

V.  Woodward,         .     196,  356 

High  and  Wife  v.  Batte,      .         .129 

V.  Worley,  .         .         .         .137 

Hightower  v.  Mustain,         .         .     314 

V.  Smith,    . .       .         .392 

Higinbotham  v.  Burnet,      .         .     335 

Hilar  v.  Darly's  Admr's.,     .         .     254 

Hill  V.  Beach,       .         .         .         .443 

V.  Bowyer,    ....     399 

V.  Commissioners,         .         .     320 

V.  Epley,       ....     150 

V.  Grigsby,  .         .         .         .128 

V.  Lackey,    .         .         ...     167 

V.  McLaurin,         .         .         .     183 

V.  Ressegieu,         ...       81 

V.  Rockingham  Bank,  .         77,  80 

V.  United  States, .         .         .     194 

Hilleary  v.  Hurdle,      .         .         .309 

Hillyard  v.  Miller,        .         .         .43- 

Hilton  V.  Duncan,        ...       86 

Hinchman  v.  Richie,  .         .     290,  292 

V.  Patterson,      .         .     210 

Hindson  v.  Wetherill,         61,  184,  248 

Hine  v.  Dodd,      ....     153 

V.  Handy,   .         .         .         .194 

V.  Hine,      .         .         .         .105 


TABLE    OF    AMERICAN    CASES. 


Ivii 


Hine  v.  Stephens, 

196 

Honors  v.  Colmesnil, 

.     244 

Hines  v.  Keller,  . 

. 

269 

Hood  V.  Bowman, 

.       86 

V.  Spruill, 

254, 

255 

V.  Fahnestock, 

.     157 

Hinkle  i'.  Currin, 

, 

19 

V.  Inman,  . 

.     -    .     306 

Hinsdil  v.  Murray, 

. 

269 

V.  James,  . 

.     121 

Hinson  v.  Pickett, 

, 

399 

V.  N.  Y.  &  N.  H 

.  Railroad 

V.  Partee, 

HI 

Co.,    . 

.     198 

Hinton  v.  Cole,  . 

309 

V.  Oglander, 

.       31 

Hitch  V.  Davis,  . 

309 

Hook  V.  Craighead, 

.     168 

V.  Fenby, . 

397, 

417 

419 

V.  Stone,    . 

.     241 

Hitchcock  V.  Harrington,  . 

114 

Hooker  v.  Pynchon, 

.       77 

V.  St.  John, 

241 

Hooly  V.  Hatton, 

.      104,  105 

r.  Skinner, 

230 

233 

Hooper  v.  Gumm, 

6 

Hite  V.  Hite, 

103 

V.  Reyster, 

.     319 

Hitt  V.  Holiday,  . 

113 

Hoover  v.  Epler, 

.     270 

V.  Ormsbee, 

, 

363 

V.  Hoover, 

254,  263,  275 

Hobart  v.  Frisbie, 

303 

V.  Reilly, 

.     168 

Hobbs  V.  Parker, 

177 

Hope  v.Brinckerhoff, 

.     413 

Hobday  v.  Peters, 

. 

176 

V.  Carnegie, 

.     198 

Hockenbury  v.  Carlisle, 

184 

V.  Fox, 

.     313 

Hocker  v.  Gentry, 

136 

Hopgoodw.  Parkin, 

61 

Hoday  v.  Hound, 

167 

Hopkins  v.  Forsyth, 

.     268 

Hodges  t'.  Mullikin,    . 

364 

V.  Garrard, 

.     153 

V.  N.  E.  Screw  Co., 

397 

V.  Hopkins, 

.     317 

Hodgman  v.  Smith,    . 

. 

239 

V.  Mazyck, 

.     168 

Hoen  V.  Simmons, 

82 

V.  McEldery, 

.     351 

Hoes  V.  Van  Hoesen, .         .* 

261 

263 

V.  McLaren, 

.     157 

Hoff's  Appeal,     . 

261 

Hopkinson  v.  Lord  Burghley,     .       15 

Hoffman  v.  Livingstone,     . 

196 

356 

V.  Rolt, 

.     110 

V.  Postil,      . 

308 

Hopkirk  v.  Paige, 

.     317 

V.  Savage,    . 

231 

Hopper  V.  Hopper, 

77-87 

V.  Smith, 

, 

376 

Matter  of. 

.     297 

Hogan  V.  Jacques, 

33 

Hopping  V.  Burnham, 

.     153 

Hoge  V.  Hoge,    . 

188 

248 

Hopwood  V.  Hopwooc 

,        .         .105 

Hoitt  V.  Webb,   . 

61 

Horn  V.  Keteltas, 

.     Ill 

Holden  v.  McMakin,  . 

243 

246 

V.  Thomas, 

.     356 

V.  Pike,  . 

270 

Home  V.  Lythe, 

.       40 

Holderstaffe  v.  Saunders,   . 

194 

Horsburg  v.  Baker, 

.     404 

Holdin  V.  Durbin, 

, 

39 

Horton  v.  The  Church,       .         .     203 

Hole  V.  Barlow, . 

211 

Horton's  Appeal, 

.     242,  363 

Holgate  V.  Palmer, 

, 

364 

Hosack  V.  Rogers, 

.     350 

Holliday  v.  Riordon,  . 

336 

Hosford  V.  Merwin, 

.     230 

Hollister  v.  Barkley,  .       196, 

356, 

379 

Hotchkiss  V.  Fortson, 

.     183 

HoUoway  v.  Holloway, 

217 

Hotten  V.  Arthur, 

.     216 

V.  Moore,    . 

, 

20 

Hough  V.  Richardson 

.      157, 177 

Hollsclaw  V.  Johnson, 

, 

335 

Houghton,  Ex  parte. 

33 

Holmes  v.  George, 

196 

V.  Houghton,     .         .     184 

V.  Hawes, 

243 

House  V.  Falconer,     . 

.     232 

V.  Holmes,      .          20,  21, 

230 

V.  Thompson, 

.     272 

V.  Logan, 

, 

286 

Houseal  &  Smith's  Appeal,         .     243 

Holridge  v.  Gillespie, 

113 

Houston  V.  The  Branch  Bank,    .     268 

Holroyd  v.  Marshall,  . 

54, 

110 

Hovey  v.  Halcomb, 

.     Ill 

Holsman  v.  The  Boiling  Spring 

How  i;.  Mortell, 

.     194 

Co.,         .... 

199 

211 

Howard  v.  Edgell, 

.       79 

Holt  V.  Bank  of  Augusta,  . 

356 

V.  Henriques, 

.     217 

V.  Robertson, 

268 

V.  Lee,  . 

.     211 

Holton  V.  Meighen,     . 

111 

Howe  V.  Harvey, 

.     302 

Holyoke  v.  Mayo, 

240 

V.  Hunt, 

77,84 

Homer  v.  Hanks, 

402 

V.  Rogers, 

86 

Honeywood  v.  Forstei 

"> 

96 

V.  Russell, 

.     386 

Iviii 


TABLE    OF    AMERICAN    CASES. 


Howell  V.  Ashmore, 
V.  Baker, 
V.  Harvey, 
V.  Ransom, 
V.  Sibring, 
Howells  V.  Jenkins, 
Howey  v.  Goings, 
Hoxey  v.  Carey, 
Hoxie  V.  Carr,     . 
Hoy  V.  Bramhall, 

V.  Hansborough, 
V.  McMurry, 
Hoye  V.  Brewer, 
Hoyt  V,  Hammekin, 
V.  Hilton, 
V.  MacKenzie, 
Hozen  v.  Darling, 
Hubbard  v.  Goodwin, 
Hubble  V.  Perrin, 
Hudson  V.  Barrett, 
V.  Cline, 
V.  Hudson, 
V.  Isbell, 
HuflFman  v.  Hummer, 
Hu^jer  V.  Huger, 
Huggins  V.  Hall, 
Hughes  V.  Blake, 
V.  Cook, 
V.  Edwards, 
V.  Hughes, 
V.  U.  S., 
Hulbert  v.  McKay, 
Hull  V.  Hull, 

V.  Sturdivant, 
Hulme  V.  Tennant, 
.  Hultz  V.  Wright, 
Humber  v.  Rector  of  T 
Hume  V.  Pocock, 
Humes  v.  Shelly, 
Hummer  v.  Schott, 
Humphrey  v.  Foster, 

V.  Phinney, 
Humphreys  v.  Leggett, 
Hundley  v.  Mount, 
Hunley  v.  Hunley, 
Hunn  V.  Morton, 
Hunt  V.  Bass, 

V.  Elmes,   . 
V.  Freeman, 
V.  Godkin, 
V.  Hamilton, 
V.  Hunt,     . 
V.  Mansfield, 
V.  Moore,   . 
V.  Penrice, 
V.  Rousmanier, 
V.  Smith,    . 
V.  Townsend, 
V.  White, 
Hunter  v.  Bales, 


15 


1,  243 
1 


26 


61, 


14,1 


4 
248 
243 
184 
309 

96 

230 

346 

246 

3,  270 

T7 
321 
1,  263 
364 
280 
214 
258 

42 
243 
241 
375 

61 
111 

84 
285 
315 

21 
309 
7,  153 
287 
1,  188 
385 
263 

77 

43,  45 

106 

rin.  Church,  303 

84 
121 
128 
375 
233 
198 
153 
314 
390 
55,  61 

15 

85 
240,  344 
248 
183 
270 
177,  183 
338 
168 
399 
272 
172 

81 


15 


Hunter  v.  Clark,  .         .         .268 

V.  Hubbard,    ...       62 

Hunter's  Ex'rs.  v.  Spotswood,    .     222 

Hunton  v.  Piatt,  .         .         .     310 

Hurd  V.  Case,      ....     403 

Hurlburd  v.  Freelove,  .         .     397 

Hurlbut  V.  Phelps,      .         .         .106 

Hurter  v.  Bobbins,      .         .         .329 

Hurst  V.  Fisher,  .         .         .136 

V.  Sheldon,         .         .         .203 

Hussey  v.  Dole,  .         .         .     312 

Huston  V.  Hamilton,   ...       32 

V.  McCarty's  Heirs,         .     312 

Hutcheson  v.  McNutt,  .         .       82 

Hutchins  v.  Hope,        .     196,  227,  356 

Hutchinson  v.  Browne,       .      177,  183 

V.  Hutchinson,         .       33 

V.  Shepperton,  .     193 

Hutton  IK  Duey,  ...       45 

Hyer  v.  Little 363 

Hyman  «j.  Devereux,  .         .110 

V.  Kelly,  .         .         .121 

Hynes  v.  Stewart,        .         .         .     240 


Iddings  V.  Bruen, 
Iglehart  v.  Crane, 
Imlay  v.  Huntingdon, 
Inbusch  V.  Farwell, 
IngersoU  v.  Kirby, 
Inglessi  v.  Spartali,    . 
Inglis  V.  Trustees  of  Sailor 

Harbor,    . 

Ingraham  v.  Baldwin, 

V.  Regan,    . 

Ingram  v.  Kirkpatrick, 

V.  Phillips,     . 

Innes  v.  Erans,  . 

V.  Jackson, 

V.  Lansing, 

V.  Sayer,    . 
Ins.  Co.  V.  Union  Canal  Co 
Irick  V.  Black,    . 
Irvin  V.  Davidson, 

V.  Smith,  . 
Irvine  v.  Forbes, 
Irving  V.  Hughes, 
Irwin  V.  Harris, 

V.  Ivers,    . 

V.  Planters'  Bank, 

V.  Tabb,    . 
Isham  V.  Bennington  Iron 
Ives  V.  Armstrong, 

V.  Harris,    . 
Izard  V.  Bodine, 


Jackman  v.  Ringland, 
Jacks  V.  Nichols, 
Jackson  v.  Cutright,  . 

V.  Edwards,  . 

V.  French,     . 


.       61 

153, 270 

40,  42,  46 

.     243 

.     310 

10 


Snug 


86 


65 

.  182 

.  303 

.  31 

.  153 

.  337 

.  173 

.  243 

.  97 

.  77 

.  268 

,  210 

.  153 

,  239 

.  198 
59,  61 

.  33 

.  168 

.  95 

.  153 

.  88 

.  46 

.  386 


33 
363 
,  346.  347 
'  232 
6 


Co., 


TABLE    OF    AMERICAN    CASES, 


Ux 


Jackson  v.  Forest, 

, 

310 

V.  Grant, 

403 

V.  Inabinit,    . 

6 

V.  Jackson,   . 

285,  286 

V.  Leek, 

153 

V.  Ligon, 
V.  Lodge, 
V.  Matsdorf,  . 

'.       88 

.      114 

83.  101 

V.  Moore, 

28 

V.  Pavne, 

172 

V.  Phillips,    . 

67 

r.  Sharp, 

153 

Jackson's  Assignees  v.  Cutright,    304 
Jacobs  V.  Locke,         ...       84 

V.  Morange, 
V.  Richards,    . 

168 
183 

Jacobson  v.  Blackhurst, 

205 

James  r.  Bostwick,     . 

240 

V.  Brown, 

270 

I'.  Dixon, 

210 

V.  Gibbs, 

48 

t'.  Holmes, 

184 

V.  Hubbard,     . 

27 

0,  272 

V.  McKarnon, 

303,  305 

V.  State  Bank, 

85 

James  River  v.  Littlejohn, 
Jamison  v.  Bradj, 

316 
45 

V.  Glascock, 

61 

Jaques  v.  Methodist  Church, 

46 

Jarvis  v.  Brooks, 

243 

V.  Dutcher, 

123 

V.  Palmer,         .      334 

335,  339 

Jauretche  v.  Proctor, 

31 

JefiFeryes  v.  Purday,    . 

215 

Jencks  v.  Alexander,  . 

33,  101 

Jenison  v.  Hapgood,  . 
Jenkins  v.  Bodley, 

61 
162 

V.  Eldredge,  61,  248, 

305,  379, 

397,  399 

V.  Jenkins,     . 

233 

V.  Pye,  . 

184,  186 

V.  Walter, 

57,  60 

Jenkyns  v.  Bushby,    . 
Jennings  v.  Broughton, 
V.  Patterson, 

6,7 

177 
258 

V.  Springs, 
Jervis  v.  Smith, . 

346 
272 

Jerome  v.  Jerome, 

23 

V.  Ross,  . 

210 

Jewett  V.  Davis, . 

.     176 

Ex  parte, 
Jobe  t'.  O'Brien, . 

285 
270 

John  V.  Jones,     . 

269 

Johns  V.  Reardon, 

17 

3,  313 

V.  Erb, 

37 

6,  377 

Johnson  r.  Bennett, 

.     136 

V.  Brown, 

.      114 

31 

0,  315 

V.  Candage, 

, 

.     113 

V.  Clendenin, 

360 

V.  Cushing, 

99 

Johnson  v.  Dougherty,       ...       33 

V.  Fesemeycr,        .         .     184 

V.  Harman,    .         .         .113 

V.  Hubbell,   .         .  77,  86 

V.  Johnson,  208,  251,  309 

V.  McGruder,  .         .       86 

V.  Noble,        .         .         .     232 

V.  Rankin,     .         .         .317 

V.  Richardson,       .         .110 

V.  Ronald,     ...       28 

».  Vail,.         .         .         .313 

V.  Walker,     .         .         .191 

V.  Williams,  .         .         .     270 

Exr's.  ».  Clark,      .         .111 

Exr's.  V.  Ketchum,        .     227 

Johnston  w.  Gray,       .         .      Ill,  112 

V.  Glancy,    ...       86 

V.  Rowlands,         .         .       31 

V.  Van  Dyke,        .         .     233 

Johnstone  v.  Earl  of  Harrowby,     105 

Jpice  V.  Taylor,  ....     177 

Jones  V.  Beach,  .         .         .      172,  173 

V.  Bos.  Mill  Corp.,    .         .     192 

V.  Bradshaw,    .         .         .19 

V.  Bridge,  .         .         .182 

V.  Bullock,        .         .      220,  364 

V.  Cowles,         .         .         .     303 

V.  Creveling's  Exr's.,         .     104 

V.  Dougherty,  .         .         .     355 

V.  Evans,  .         .         .         .182 

V.  Jones,  .         .  93,  95,  244 

V.  Kearney,       .         .         .176 

V,  Lynds,  .         ,         .         .313 

V.  McKee,  .         .         .248 

V.  MaflFet,  .         .         .         .37 

V.  Mason, .         .       106,  363,  392 

V.  Myrick,  .         .         .270 

V.  Noble,  ....       82 

V.  Plummer,      .         .         .     136 

V.  Smith,  .         .         .         .402 

V.  Stockett,       .         .        38,  287 

V.  Whitehead,  .         .         .     208 

Jopling  V.  Dooley,       .         .         .     179 

Jordan  v.  Money,         .         .         .     363 

r.  Deaton,        ...       77 

Jordon  v.  Stevens,      .         .      177,  190 

Josey  V.  Rogers,  .         17,  402,  403 

Joslyn  V.  Wyman,        .         .         .110 

Joy  V.  Wirtz,       .         .         .         ,323 

Joyce  V.  De  Moleyns,  .         .         .     162 

Judah  V.  Brandon,      .         .         .     258 

Judd  t'.  Seaver,  .         .         .20,  363 

Judge  V.  Wilkins,        .        .         .     174 

Judson  V.  Gibbons,     .         .         .       37 

Julio  V.  Ingalls,  ....     239 

Justices  of  Pike   Co.   v.   Griffin 

and  West  Point  Plank  Co.,  .  210 
Juvenal  v.  Jackson,  .  .  .  151 
Juzan  V.  Toulmin,      .         .      174,  177 


Ix 


TABLE    OP    AMERICAN    CASES. 


Kane  v.  Gott, 

.     136 

Kiddall  v.  Trimble,     , 

234 

Matter  of, . 

287,  288 

Kidder  v.  Kidder, 

106 

Kauffelt  V.  Bowes, 

.      128 

Kidney  v.  Coussmaker, 

95 

Kaufman  v.  Crawford, 

.     285 

Kilpatrick  v.  Kilpatrick,     . 

128 

Kavanaugh  v.  Thompson, 

.       96 

Kimberly  v.  Fox, 

202 

Kearney  v.  Harrell,     . 

.     376 

V.  Jennings, 

207 

V.  Macomb,   . 

93,  111 

V.  Sells, 

335 

Keeler  v.  Eastman, 

'  .     208 

Kimmel  v.  McRight,    .         .        3 

3,  101 

Keim  v.  Taylor,  . 

.     364 

Kincheloe  v.  Kincheloe, 

23 

Keinck  v.  Price, 

.     Ill 

King  V.  Baldwin, 

268 

Keisselbrock  v.  Livingston 

e,      85,  106 

V.  Bardeau, 

90 

Keith  V.  Horner, 

,     129 

V.  Bill, 

157 

V.  Trapier, 

233,  235 

V.  Clark,     . 

389 

Kekewich  v.  Manning, 

53,  55,  80 

V.  Cloud,    . 

364 

Keller  v.  Fisher, . 

.       88 

V.  Donnelly, 

37 

Kelley  v.  Payne, 

.     309 

V.  Doolittle, 

168 

Kellogg  V.  Smith, 

.     151 

V.  Hamilton, 

84,  85 

Kellum  V.  Smith, 

33,  111 

V.  Mitchell, 

32 

Kelly  V.  Greenleaf, 

;    221 

V.  Morford, 

77 

V.  Jackson, 

6 

V.  Mullin,    . 

59 

V.  Morris,  . 

.     216 

V.  Phillips, 

38 

V.  Paine,   . 

.     309 

V.  Ray, 

8 

Kelsey  v.  Western, 

261,  263 

V.  Ruckman, 

88,90 

Kemble  v.  Kean,     '    . 

.     207 

V.  Savery,  , 

184 

Kemp  V.  Carnley, 

.     241 

V.  Talbot,   . 

57 

V.  Mitchell, 

.     399 

V.  Trice,     .         . '       . 

303 

Kendall  v.  Honey, 

.     235 

V.  Woodhull, 

65 

V.  Man,  . 

.       33 

of  Sicilies  v.  Willcox, 

23 

V.  New  Eng.  Carpi 

Jt  Co.       61 

of  Spain  v.  Hallett,    , 

2 

V.  New  England  C 

0.,     .     272 

Kingman  v.  Sparrow,  . 

233 

Kennard  v.  George,     . 

.     168 

Kinlock  v.  Hamlin, 

240 

Kennebec  R.  R.  v.  Portland 

R.R.,     310 

Kinnaman  v.  Henry,    . 

344 

Kennedy  v.  Davis, 

.     317 

Kinsey  v.  Woodward, 

94 

In  re,  . 

.     283 

KinsleriJ.  Clarke,         .         .      20 

8,  356 

Johnson, 

.     297 

Kinter  v.  Jenks, 

31 

V.  Kennedy,      17 

6,  202,  241, 

Kip  t'.  Bank  of  New  York,  . 

60 

'243,  3( 

)3,  310,  316 

Kirby  v.  Dalton, 

233 

V.  Nedrow,  . 

.       94 

V.  Harrison, 

174 

V.  Ware, 

.        78 

V.  Schoonmakef, 

243 

Kenny  v.  Udal,   . 

48 

Kirk  V.  Hodgson, 

364 

Kent  V.  Jackson, 

.     320 

Kirkman  v.  Bank  of  America, 

268 

V.  Lasley,    . 

.     Ill 

V,  Vaulier, . 

222 

.  V.  Plummer, 

.     153 

Kirkpatrick  v.  Atkinson,     . 

377 

Kenton  v.  Vandergrift, 

.      Ill 

V.  McDonald,   . 

33 

Kern  v.  Hazlerigg, 

.      129 

V.  Rogers, 

263 

Kerney  v.  Kerney, 

.      168 

V.  White, 

339 

Kerns  v.  Chambers,    . 

.     269 

Kirksey  v.  Fike, 

129 

V.  Swope, 

151,  153 

V.  Means, 

309 

Kerr  v.  Day, 

.     141 

Kisor  V.  Stancifer, 

334 

V.  Gilmore, 

.     Ill 

Kitchen  v.  Herring,     . 

83 

V.  Potter,    . 

.     239 

Kittera's  Estate, 

257 

V.  Purdy,     . 

.       82 

Kittle  V.  Van  Dyck,     . 

233 

V.  Steamboat  Co., 

,     221 

Kittredge  v.  Claremont  Bank, 

8 

Ketchum  v.  Stout, 

.       84 

V.  Emerson, 

198 

Kettletas  v.  Gardner, . 

.     283 

Klines'  Appeal, 

33 

Key  V.  GriflSn,     . 

97 

Estate, 

180 

V.  Lambert, . 

.     312 

Knicherbacker  v.  Harris,    . 

363 

Keys  V.  Wood,    '. 

.     110 

Knight  V.  Boughton,  ^ 

29 

Keyzey  (Case  of), 

.     261 

V.  Bunn, 

168 

Kidd  V.  Cheyne, 

.     418 

V.  Knight,        .         .26 

3,  274 

TABLE 

OF 

AME 

Knight  V.  Majoribanks, 

61 

Knoll  V.  Harvej'. 

86 

KnoflF  V.  Thompson,     .        33 

,  lo'i, 

150 

Knowles  v.  Lawton,    . 

272 

V.  Rablin, 

. 

113 

Knowlton  r.  Walker, . 

111' 

Knox  t'.  Campbell, 

. 

368 

V.  Smith,    . 

203 

Knuckolls  r.  Lea, 

177 

Kopler  t".  Los  Angeles, 

. 

196 

Kortright  r.  Cadv, 

110 

Kramer  v.  Arthurs,     . 

162 

246 

k  Rahm's  Appeal, 

. 

268 

Krider  v.  LaflFerty, 

151 

153 

Krupp  V.  SchoU, 

180 

Kuhn  r.  Newman, 

, 

44 

Kunkell  v.  Markell,     . 

, 

310 

Kunkle  v.  Wolfersberger.    . 

111 

Kuypers  v.  Ref.  Dutch  Church,  . 

335 

Kyle  V.  Roberts, 

240 

Kyles  V.  Tail,      . 

128 

Kyner  v.  Kyner, . 

269 

,270 

Ladd  t".  Harvey, . 

. 

352 

Ladue  v.  The  R.  R.  Co.,      . 

, 

110 

Lafarge  Insurance  Co.  v.  Bell,    . 

272 

Lafone  r.  Falkland  Islands 

Co., 

6 

Laidlaw  v.  Organ, 

. 

179 

Laight  V.  Morgan, 

335 

Lainhart  v.  Reilly, 

322 

Laird  r. Birkenhead  Railway 

Co., 

77 

Lake  v.  Dowd, 

123 

Lally  V.  Holland, 

153 

L'Amareaux  v.  Crosby 

290 

Lambert  v.  Lambert,  . 

, 

402 

Lamborn  v.  The  Covington 

Co., 

219 

Lanahan  v.  Lathrobe, 

95 

Lancaster  Co.  Bank  v.  Albright, 

179 

V.  Dolan,    . 

46 

Re,     .         .         . 

301 

Land  v.  Cowan,  . 

309 

Landes  v.  Brandt, 

153 

Lane  i'.  Dickerson, 

111 

V.  Latimer, 

174 

V.  Stebbins, 

18 

V.  Stevens, 

339 

Lang  V.  Brown,  . 

386 

,  387 

f.  Waring, 

246 

Langdon  f.  Astor's  Executors,   . 

104 

V.  Goddard, . 

8 

V.  Paul, 

114 

V.  Roune's  Adm'rs 

J           • 

228 

Langstaff  v.  Rock, 

268 

Lanier  r.  Hill,    . 

177 

V.  Wyman, 

171 

Lanning  i-.  Smith, 

363 

Lansing  v.  Eddy, 

198 

V.  Russel, 

183 

Lannm  v.  Steel, 

345 

Lapreese  v.  Falls, 

376 

Ixi 


Large  v.  Van  Doren, 
Larkin  t>.  Mann, 
Larkins  v.  Biddle, 
r.  Rhodes, 
Larrabee  v.  Larrabee 
Larrowe  v.  Beam, 
Laselle  v.  Barnett, 
Lathrop  v.  Gilbert, 
Lathrop's  Appeal, 
Latimer  v.  Hanson, 
V.  Rogers, 
Latting  v.  Latting, 
Laughlin  v.  Ferguson, 

V.  Lorenz  Adm'r, 
Lavender  v.  Lee, 
Laverty  v.  Moore, 
Lavette  v.  Sage, 
Law  V.  Ford, 
Lawrence  v.  Beaubin, 
V.  Hammitt, 
I'.  Lawrence, 
Lawrens  v.  Lucas, 
Lawson  v.  Morton, 
Lawton  v.  Campion,  . 
Leach  v.  Beattie, 
Leacraft  v.  Dempsey, 
Leacroft  v.  Maynard, 
Leadenham  v.  Nicholson 
Leaf  V.  Coles,     . 
Lear  v.  Chouteau, 
Lear's  Ex'rs.  v.  Edson, 
Leathart  r.  Thorne,    . 
Leather  Cloth  Co.  v.  The 
can  Leather  Cloth  Co., 
Leavitt  v.  Steenbergen, 

V.  Wooster,   . 
Leaycraft  v.  Heddon, 
Lebby  f.  Stanley, 
Lerkensdorfer  v.  Delphy, 
Ledyard  v.  Chapin,     . 

v.  Johnson, 
Lee  r.  Baird, 

V.  Beatty,     . 

V.  Evans, 

V.  Howe, 

V.  Kirkpatrick,     . 

V.  Lee, 

V.  Pindle,     . 

V.  Randolph, 
Leeds  v.  Marine  Ins.  Co.  of 

andria,    . 
Lees'  Adm'rs.  v.  Reed, 
Lefevre  v.  Laraway,   . 
Le  Fort  v.  Delafield,  . 
Legare  v.  Ashe, 
Leggett  V.  Dubois, 

V.  Perkins,    . 
V.  Postley,     .      • 
Leiby  v.  Wolfe, 
Leigh  V.  Clark,  , 


168 


110 

231 
, 310, 346 
.  33 
186,  188 
.  162 
.  151 
.  33 
.  269 
.  37 
.  232 
.  309 
.  270 
.  241 
.  168 
.  81 
.  183 
.  243 
.  168 
.  238 

167,  363 
.  84 
.  233 
.  189 
.  232 
.  339 
.  105 
.  136 

243,  292 
.   78 

168,  363 
.  320 


Ameri- 


217 
364 
263 

46 
128 
168 
110 
250 
197 
376 
111 

91 
150 
416 
392 

37 


Alex- 


.  20 
.  227 
.  61 
.  335 
,  248 
33,  42 
46 
18,  19 
.  153 
.  196 


Ixii 


TABLE    OF    AMERICAN    CASES. 


Leigh  V.  Crump, 

11,  84 

Littlefield  v.  Smith,    . 

53 

V.  Savidge, 

272 

V.  Tinsley, 

84 

Leight  V.  Leight, 

96 

Littlejohn  v.  Gordon, 

128 

Leiper's  Exr's.  v.  Irvine, 

142 

Livermore  v.  Aldrich, 

33 

Leisenring  v.  Black,  . 

184 

Livingston  v.  Clarkson, 

231 

Lemaster  v.  Burkhart, 

304 

'                       V.  Harris, 

334 

Le  Neve  v.  Le  Neve,  151,  153 

'157 

,  158 

V.  Hubbs, 

417 

Lennig's  Estate, 

261 

In  re, 

296 

Lenox  v.  Notrobe,  51,  61,  233 

281 

,352 

V.    Livingston, 

101, 

196, 

363 

199,  210,  263, 

274,  275, 

Le  Roy  v.  Servis, 

334 

33 

5,  356 

V.  Veeder, 

335 

Matter  of, 

293 

Lesley  v.  Johnson, 

150 

V.  Newkirk, 

263,  272 

V.  Rosson, 

222 

V.  Reynolds, 

208 

Lessig  V.  Langton, 

356 

V.  Story,  . 

126,  335 

Letcher  v.  Letcher,    . 

33 

V.  Tompkins,    . 

107,  334 

V.  Shrojder, 

54 

312 

Lloyd  V.  Attwood,      .      151 

,  163,  165 

Lever  v.  Lever,  . 

221 

V.  Barr,    . 

269 

Levert  v.  Redwood,    . 

379 

V.  Brewster,     . 

309 

Leverton  v.  Waters,    . 

230 

V.  Carter, 

33 

Levy  V.  Levy,     . 

65 

V.  Galbraith,    . 

27 

0,  272 

Lewellen  v.  Cubbold, 

180 

V.  Hart,    . 

, 

285 

Lewis  V.  Bacon, 

255 

V.  Loaring, 

77 

V.  Baird, 

153 

Lobdell  V.  Hayes, 

233 

V.  Darling, 

263 

i'.  Lobdell,     . 

77 

V.  Hilman, 

61 

Lockard  v.  Lockard,         198 

,  331,  344 

V.  Leak,    . 

356 

Lock  V.  Fulford, 

270 

V.  Lewis, 

92,  97 

Locke  V.  Palmer, 

111,  123 

V.  McLemore,  . 

177 

Lockerson  t'.  Stilwell, 

. 

HI 

V.  Matthews,    . 

45 

Lockwood  V.  Fenton, 

282 

V.  Mew,     . 

157 

V.  Lockwood,    . 

121 

V.  Moorman,     . 

233 

V.  Stockholm,    . 

263 

V.  Palmer, 

269 

V.  Thorne, 

226 

V.  Robards, 

111 

Lodwick  V.  Johnson, 

272 

Liddard  v.  Liddard,    . 

31 

Logan  V.  Bond, 

244,  303 

Liddell  v.  Norton, 

12 

V.  McGinnis,    . 

77 

Lightner  v.  Mooney,  . 

153 

V.  Simmons,    . 

180 

Ligon's  Adm'r.  v.  Rogers, 

168 

Long  V.  Long,    , 

183 

Lilford  V.  Powys, 

275 

V.  Majestic, 

222,  315 

Lillard  v.  Turner, 

46 

V.  Mulford, 

, 

232 

Lilly  V.  Kroesen, 

227 

V.  Norcom, 

, 

286 

Lincoln  v.  Rutland,  &c.,  R. 

R. 

Co. 

203 

V.  Storie,  . 

319 

Lindsay  v.  Etheridge, 

196, 

356 

Longworth  v.  Taylor, 

84 

V.  Harrison, 

44 

Loomer  v.  Wheelright, 

173,  174 

V.  Pleasants, 

33, 

138 

Loomis  V.  Brown, 

196 

V.  Rankin,     . 

, 

151 

Loomis's  Estate, 

263 

Lindsey  v.  Bates, 

. 

129 

Lord  V.  Lowry,  . 

. 

28 

V.  James, 

20 

V.  Morris,  . 

110 

Linford  v.  Linford,     . 

243 

V.  Staples, 

270 

Lingan  v.  Henderson,  23,  303, 

304 

,309 

Lorillard  v.  Coster,     . 

43,  136 

364 

Loudon  V.  Warfield,  . 

208 

Lining  v.  Geddes,     ^. 

210 

Lounsbury  v.  Purdy, 

, 

33 

Linker  v.  Smith, 

180 

Love  V.  Cobb,     . 

, 

77 

Linkhouse  v.  Cooper, 

84 

Loveday,  Ex  parte,     . 

29a 

Lippincott  v.  Stokes, 

100 

Lovegrove  v.  Cooper, 

252,  256 

Lister  v.  Hodgson, 

168 

Lovejoy  v.  Irelan, 

, 

312 

Litchfield  v.  Ready,    . 

114 

Lovell  V.  Farrington, 

, 

304 

Little  V.  Co(»per, 

20 

V.  Minot, 

56 

V.  Marsh, 

196 

356 

Lovett  V.  Longmire,  . 

331 

V.  Price,  . 

. 

198 

V.  Steam,  &c..  Ass., 

. 

363 

TABLE    OF    AMERICAN    CASES. 


Ixiii 


Low  V.  Holmes, 

. 

230 

Lowe  V.  Lowry, 

. 

199 

V.  Traynor, 

377 

Lowndes  v.  Chisholm, 

.'      118 

269 

Lowralle  v.  Menard,  . 

. 

233 

Lowry  v.  Cox,     . 

191 

V.  Farmers'  Bank 

251 

V.  Muldrow,     . 

, 

84 

V.  Spear, 

. 

186 

Lowther  v.  Lowther, 

. 

77 

Loyd  V,  Read,     . 

101 

Lozier's    Ex'rs.   v.    Van 

Saun's 

Adm'rs., 

203 

Lucas  V.  Atwood, 

243 

V.  Bank  of  Darien, 

19,  198, 

312, 
363 

V.  Hickman, 

. 

360 

V.  Lockhart,     . 

31 

Luckett  V.  White, 

310 

V.  Williamson, 

84,  86 

Ludlow  V.  Simond, 

221 

Lumley  v.  Wagner,     . 

'.        81 

207 

Lunsford  v.  Bostion,  . 

379 

Lupeer  Co.  v.  Hart,    . 

, 

199 

Lupton  V.  Janney, 

227 

V.  Lupton, 

103,  263 

364 

Lushington  v.  Boldero, 

316 

Lyday  v.  Douple, 

. 

198 

Lyman  v.  Lyman, 

, 

270 

V.  Ins.  Co., 

168 

Lynch  v.  Cox,     . 

, 

33 

V.  Johnson, 

310 

V.  Sumrall, 

,          , 

20 

Lyne  v.  Guardian, 

, 

248 

Lynn  v.  Boiling, 

. 

363 

Lyon  V.  Baker,   . 

. 

61 

V.  McLaughlin, 

. 

199 

V.  Richmond,     . 

168 

V.  Saunders, 

168 

V.  Tallmage, 

. 

346 

Lyons  v.  Miller, 

20,21 

363 

Lyrely  v.  Wheeler, 

.      196 

356 

Lytle  V.  Pope,     . 

.      157 

269 

McArtee  v.  Engart,     . 

174 

McAuley  v.  Wilson,    . 

69 

McBain  v.  McBain, 

230 

McBrayer  v.  Hardin,       , 

208 

McCabe  v.  Bellows,    . 

309 

McCalmount  v.  Rankin, 

.      176 

303 

McCainmon  v.  Petit,  . 

33 

McCampbell  v.  McCampb 

eil,  263, 

275 

McCants  v.  Bee, 

61 

McCarty  v.  Pruet, 

128 

McCartney  v.  Garnhart, 

217 

McCaskle  v.  Amarine, 

153 

McCaughall  i'.  Ryan, 

65 

McCauly  t>.  McFarlane, 

244 

McClean,  Matter  of,    , 

292 

McClellan  v.  Darrah, 

84 

McCllntic  V.  Manus,    .         .  .     230 

McClung  V.  Beirne,     .         .  .     270 

McClure  v.  Evans,       ,         .  .     105 

McClurg  V.  Fryer,       .         .  .     268 

McCoUum  v.  Prewitt,          .  .197 

McConnel  v.  Holobush,      ,  .     118 

McConnell  v.  McConnell,    .  309,  312 

V.  Read,     ,         .  .153 

V.  Scolt,    .         .  ,270 

McCord  V.  Ochiltree,           .  .       65 

McCormack  v.  Obannon,    .  .     269 

McCormick  v.  Malin,           .  .183 

McCormick's  Adm'r.  v.  Irwin,   .     269 

Appeal,          .  .     272 

McCosker  v.  Brady,              .  .     309 

McCoy  V.  Rhodes,       .         .  .363 

McCrackan  v.  Valentine,    .  .     382 

McCrae  v.  Hollis,        .         .  .188 

McCrea  v.  Purmort,    .         ,  .     303 

McCrocklin  v.  McCrocklin,  .       45 

McCrory  v.  Foster,      ...       33 

McCue  V.  Johnston,    ...       86 

McCulloh  V.  Dashiel,           •  .     243 

McCoUough  V.  Irvine,         .  .     208 

V.  W'ilson,        .  .     153 

V.  Somerville,  .     241 

McCumber  V.  Oilman,        .  .121 

McCunn  v.  Bolt,          .         .  .269 

McDaniel  v.  Moorman,        .  .     182 

McDaniell  v.  Bell,       .         .  .192 

McDermott  v.  Blois,   .         .  .     335 

McDonald  v.  Black,    .         .  .268 

V.  McDonald,      .  .     308 

v.  McLeod,         .  Ill,  363 

McDougald  v.  Dougherty,  346,    352, 

379,  383,  386,  389 

McDougall  V.  Dougherty,    .  .     399 

V.  Miln,     .          .  .     389 

McDowall  V.  Payton,            .  .     248 

McDowell  V.  Bank,      .         .  .     269 

V.  Bank  of  Wilmington,  21 

V.  Caldwell,         .  .     286 

V.  Graham,          .  .     303 

V.  Lawless,          .  .     261 

McElfresh  v.  Schley,  .         .  92,  94,  95 

McElhatton  v.  Howell,        .  .       48 

McElwain  v.  Willis,    .         .  .303 

McElwee  v.  Sutton,    .         .  .389 

McFarland  v.  McDowell,    .  196,  356 

McFenan  v.  Taylor,    ...       85 

McGenee  v.  Jones,      .         .  .     346 

McGinnis  v.  McGinnis,        .  92,  272 

Appeal,      .         .  .272 

McGinity  V.  McGinity,         .  .     Ill 

McGlothlin  v.  Hemery,       .  .     309 

McGonegal  v.  Plummer,     .  .128 

McGowen  v.  Remington,    .  77,  91 

McGrew  v.  Tombeckbee  Bank,  .     198 

McGuire  v.  McGowan,         .  .       33 

V.  O'Halloran,       .  .     192 


Ixiv 


TABLE     OF    AMERICAN    CASES. 


McHenry  v.  Cooper,    . 

V.  Hazard,  . 
McHurdy  V.  McHurdy, 
Mclntire  v.  Hughes,    . 

School  V.  Zan 
Company, 
Mcintosh  V.  Alexander, 
Mclntyre  v 


.     113 

175,  200,  205 

.     254 

.        18 

Canal 

.       37 
.  .  309,  310 
Trustees  of  Union 
College,     303,  309,  344 


V.  Zanesville, 
McJilton  V.  Love, 
McKag^on's  App., 
McKay  v.  Corrington, 

V.  Green,  , 
McKeen  v.  Field, 
McKelvey  v.  Truby,  . 
McKennan  v.  Phillips, 
McKibbin  r.  Brown,  . 
McKim  V.  Handy, 

V.  Mason, 

V.  Odom, 

V.  White  Hall  Co., 

McKinley  v.  Irwine,   . 
McKinney  v.  Miller,    . 
V.  Pierce,  . 
McKinnie  v.  Rutherford, 
McKinstry  v.  Conly,   . 
McKissick  v.  Pickle, 
McLane  v.  Johnson,   . 
V.  Manning,  . 
McLard  v.  Liunville,  . 
McLaren  v.  Stainton, 
V.  Steapp,    . 
McLaurin  v.  Wright,  . 
McLellan  v.  Longfellow, 
McLenahan  v.  McLenahan 
McLeod  V.  Drummond, 
McLin  V.  McNamara, 
McLoud  V.  Roberts,    . 
McLoughlin  v.  Sheppard 
McMahon  v.  Fawcett, 
McMaken  v.  McMaken, 
McManus  v.  The  State, 
McMechan  v.  Griffing, 
McM orris  v.  Crawford, 
McMurtrie  v.  Bennett, 
McNair  v.  Picott, 
McNamara  v.  Dwyer, 
McNaughten  v.  Partridge, 
McNear  v.  Bailey, 
McNeil  V.  Magee, 
V.  McNeil, 
V.  Norsworthy, 
McNitt  V.  Logan, 
McNutt  V.  Strayhorn, 
McPherson  v.  Talbott, 
McQueen  v.  McQueen, 
McRae  v.  McKenzie,  . 
McRaven  v.  Maguire, 


56 
198 

43 

88 

258 

345 

150 

37,45 

77 
391 
399 
221 
107,  344, 
347 
317 
270 
280 
317 
111 

67 
147 
176 
363 
198 
221 
111 
6,7 
261 
351 
222 
263 
111 
269 
314 
6 
153 

81 
82,  86 
110 
360 
240 
192 
192 
257 
111 
151 
243 
269 

96 
241 
153 


77, 


McRees'  Adra.  v.  Means,     .  30,  31 

McWhorter  v.  McMahon,  .  .  84 
McWilliams  v.  Herndon,  .  .  346 
MacAlpine  v.  Burnett,  .  .  128 
MacBride  v.  Lindsay,  .         .     319 

Macbryde  v.  Weeks,  ...  88 
Macclesfield,  Earl  of,  v.  Davis,  .  77 
Maccubbin  v.  Cromwell,  37,  58,  308 
MacDougald  v.  Maddox,  .  .  19 
Mack  t'.  Wetzlar,  .  .  .  114 
Mackinnon  v.  Stewart,  .  .  31 
Mackreth  v.  Symmons,  .  128,  129 
Macleod  v.  Annesley,  .         .     318 

Maclin  v.  Smith,  .         .         .     286 

Macon,  &c.,  R.  R.  Co.  v.  Parker,  197 
Mactier  v.  Lawrence,  .      194,  259 

Maddox  v.  Dent,  .  .  .  350 
V.  Rowe,  .  .  .77 
r».  Simmons,  .         .     183 

Madiera  v.  Hopkins,  .  .  .77 
Magdalen  College  v.  Atty.-Gen.,  69 
Magee  v.  Magee,  ...       33 

Magill  V.  Brown,  ...  65 
Magniac  v.  Thompson,  .  .  303 
Magoffin  V.  Holt,  ...  88 
Magwood  V.  Johnston,  .  .46 
Mahana  v.  Blunt,  ...  86 
Maher  v.  Bull,  .  .  .  .309 
Mahone  v.  Central  Bank,  .  196,  356 
V.Williams,  .         .118 

Mahoning  Co.  Bank  v.  Williams,  109 
Mahorner  v.  Harrison,  .  .  33 
Malin  v.  Malin,  .  .  .  33,  317 
Malins  v.  Brown,  ...  86 
Mallory  v.  Mallory,  ...  33 
Mallow  V.  Hinde,  .  .  .323 
Malmesbury  v.  Malmesbury,  .  168 
Malzy  V.  Edge,  .         .         .37 

Manchester  v.  Dey,  .  .  196,  356 
Mandeno  v.  Mandeno,  .         .     394 

Mandeville  v.  Riggs,  .  .  .321 
Manes  v.  Durant,  .  .  .180 
Mange  v.  Guenat,  .  .  .12 
Manhattan  Gas  Co.  v.  Barker,  .  196 
Mann  v.  Betterley,  .  .  .  183 
V.  Butler,  .  .  .  .321 
V.  Higgins,  .  .  .  243 
Manners  v.  Manners.  .         .     230 

Manning  v.  Drake,  .  .  '  .  20 
V.  Laboree,  .         .     233 

V.  Manning,  .         .       61 

Mann's  Exrs.  i>.  Falcon,  .  .111 
Mansell's  Estate,  .  .  .261 
Mantz  V.  Buchanan,  .  .  .  233 
Many  v.  Beekman  Iron  Co.,    303,  310, 

314 
Mapps  V.  Sharpe,  .  .  .61 
Marberger  v.  Pott,  .  .  .268 
Marble  Co.  v.  Ripley,  .         .       82 

Marburry  v.  Madison,  .         .         8 


TABLE    OF    AMERICAN    CASES. 


Ixv 


March  v.  Berrier, 

. 

.     285 

V.  Davidson,    . 

18,  19 

V.  Ludlam, 

6 

('.  Thompson, 

.     400 

Margaret  v.  Conestogo, 

.     400 

Alarine  Bank  v.  Fulton  Bank,     .       57 

Ins.  Go.  V.  Hodgson, 

.     197 

Mariott  v.  Handy, 

.     110 

V.  Sam  Badger, 

92,  96,  97 

Marlatt  v.  Warwick,    . 

.     174 

Marquand  r.  N.  Y.  Man.  Co 

,      .     242 

Marsh  r.  Hague, 

103,  258 

i".  Hunter, 

57,  58 

V.  Lee, 

110,  162 

I'.  Reed,    . 

.     202 

V.  Turner, 

.      128 

V.  Wheeler, 

.     136 

Marshall  v  Billingsly, 

.     183 

V.  Means, 

309, 310 

V.  Riley, 

3 

V.  Stephens, 

.       46 

Marston  i'.  Brackett, 

.     376 

Marten  v.  Van  Schaick, 

.     243 

Martin  i".  Bell,    . 

.       45 

V.  Densford, 

.     258 

V.  Dryden, 

.     321 

V.  Greer, 

28,  33 

V.  Jackson, 

II.- 

,  117,  157 

V.  McBryde, 

.     303 

V.  Martin, 

103,  310 

V.  Melville, 

.     107 

V.  Mowlin, 

.     110 

V.  Pyeroft, 

.       87 

V.  Sale,    . 

.     153 

V.  Weil,   . 

.     310 

V.  Wincoop, 

61 

Martinetti  v.  Maguire, 

.     213 

Marvin  v.  Elwood, 

205,  206 

V.  Tittsworth, 

.     Ill 

V.  Trumbull, 

.     246 

Maryland,  &c.,  Co.  v.  Wingert,  .     363 

Mason  v.  Begg,  . 

.     257 

V.  Blair, 

.       86 

V.  Connell, 

241,  242 

V.  Man,    . 

.     221 

V.  Martin, 

.     363 

Matter  of. 

.     290 

V.  Peck, 

.       21 

V.  Williams, 

.     183 

V.  York, 

.     316 

Mason's  Estate, 

261.  263 

Massey  i-.  Mclhvain, 

86 

V.  Massey, 

28 

V.  Parker, 

44 

Massie  v.  Greenhow, 

.      151 

Masters  v.  Prentiss, 

3 

Mastin  v.  Marlow, 

.     186 

Matlack  v.  James, 

,     243 

Matthews  v  Aiken, 

.     269 

V.  Dragaud, 

59 

E 

Matthews  v.  Matthews, 
1).  Ward,     , 

Matthewson  v.  Clarke, 

Mattox  V.  Tremain,     . 

Maude  v.  Rodes, 

Maulden  v.  Armistead, 

Maury  i'.  Lewis, 

Maxwell  i".  Hyslop,     . 
V.  Kennedy, 
V.  Maxwell, 
V.  Pittenger, 


230 

50 

242 

360 

243 

83 

379 

204 

303 

93,  230 

84,  183 

V.  Whieldon's  Adm'r.,         28 

May  V.  Armstrong,     .         .        17,  403 

V.  Eastin,    .         .         .      Ill,  389 

V.  LeClaire,         .         .         .     144 

V.  Smith,     ....     309 

V.  Snyder,  ....     177 

V.  Williams,        .         .         .     345 

Mayberry  v.  Brien,      .         .         .     233 

Mayer  v.  Gulluchat,  .         .        61,  344 

Mayham  v.  Coombs,  .         .     153 

Mayne  v.  Baldwin,      .         .  .     283 

I'.  Griswold,    .         .      303,  309 

Mayo  I'.  Judah,  ....     107 

V.  Murchie,        .         .         .     302 

Mayor,  &c.,  of  Basingstoke  v.  Lord 

Bolton,        .         .      237,  238 
of  Beverly  v.  Att.-Gen.  71 

of  Georgetown  v.  Alexaa 

dria  Canal  Co.,  . 
&c.,  of  York  f .  Pilkinton, 
Meacham  i'.  Sternes, 
Mead  v.  Camfield, 

t'.  Merritt, 
Meads  v.  Langdon's  Heirs, 
Meason  v.  Kaine, 
Mechanics'  Bank  ».Levy,  10,  305,308, 

344 
V.  Lynn, 
Meconkey  v.  Rodgers, 
Medlock  v.  Cogburn, 
Meeker  v.  Meeker, 
Mehl  V.  Von  Derwulbeke,  . 
Melchor  v.  Barger,     . 
Melick  V.  Darling 
V.  Melick, 
Melleesh  v.  Bridger,  . 

V.  Robertson, 
Mendes  v.  Guedella,  . 
Meng  V.  Houser, 
Menude  v.  Delaire, 
Merced  Mining  Co.  v.  Freemont 
Mercer  v.  Newsom, 

I'.  Stark, 
Merchants'  Bank  v.  Davis, 
Meriwether  i-.  Bird,  . 
Merriam  o.  Barton,  . 
Merrick  v.  Gordon,  . 
Merrill  v.  Bartlett,  . 
Merrith  v.  Lambert,  . 


211 

194 

61 

83 

198 

248 

33,  86 


308 

240 

292 

77 

77 

93 

93 

316 

274 

168 

58 

270 

28 

210 

61 

29,  33 

20 

223 

113 

239 

268 

184 


Ixvi 


TABLE     OF     AMERICAN    CASES. 


Merritt  v.  Bartholick, 

110 

Matter  of, 

194 

Mertens  i'.  Haigh, 

16 

Messervey  v.  Barelli,  . 

320 

Metcalf  t>.  Cady, 

310 

Meth.   Church  v.  Mayor,  & 

c,  of 

Baltimore,     . 

198 

V.  Remington,    .  . 

67 

V.  Wood, 

83 

Meth.  Epis.  Ch.  v.  Jacques 

8,  33 

307 

Metier  v.  Metier, 

19, 

363 

Mevey's  Appeal, 

270 

Miami  Co.  v.  U.  S.  Bank,  . 

272 

Michian  v.  Wyatt,        .      30 

9,  313, 

346 

Michoud  V.  Girod, 

61 

Middleton  v.  Middleton,     , 

263, 

274 

Milburn  v.  Guythur,  . 

233 

Miles  V.  Bacon,  . 

61 

y    V.  Durnford, 

251 

V.  Miles,     . 

363 

V.  Smith,  . 

315 

V.  Wister, . 

103 

Milhau  V.  Sharp, 

211 

Milk  V.  Moore,    . 

376 

Mill  V.  Hill, 

191 

Millard  v.  Hathkway, 

33 

Milledge  v.  Lamar,     . 

233 

Miller  t.  Andress, 

240 

V.  Beverleys,     . 

61 

V.  Bingham, 

44 

V.  Blackburn,  . 

33 

V.  Chetwood,   . 

85 

V.  Gotten, 

176, 

303 

V.  English, 

210 

V.  Fenton, 

268, 

402 

V.  Fitchthorn,  . 

168 

V.  Ford,    . 

334 

V.  Furse,  . 

304 

V.  Grandy, 

201 

V.  Hartle, 

101 

V.  Harwell, 

263, 

275 

V.  Henderson,  . 

106 

V.  Henlan, 

h 

.   88 

V.  Lincoln, 

118 

V.  Lockwood,  . 

110 

V.  McCan, 

194, 

304 

V.  Meetch, 

30 

V.  Pearce, 

248 

V.  Porter, 

65 

V.  Saunders,     . 

336, 

344 

V.  Sawyer, 

269 

V.  Sherry, 

157 

V.  Thurgood,    . 

94,  96 

V.  Tolleson, 

363 

V.  Wells,  . 

168, 

185 

V.  Whittier, 

386 

V.  Womack's  Adm'r 

3.,        . 

227 

Miller's  Estate,  . 

285 

Milligan  v.  Milledge,  . 

322 

Milliken  v.  Dravo,      . 

86 

Mills  V.  Argall,  ,         .         .         .241 

V.  Dennis,  .         .         .     121,  285 

V.  Gore,      ....     363 

V.  Lewis,    ....     171 

Milnes  v.  Gery,  .         .         .         .77 

Milroy  v.  Lord,  ....       80 

Miltenberger  v.  Morrison,  .         .     309 

Mims  V.  Macon,  ....     128 

Miner  v.  Atherton's  Executor,    .     105 

Minturn  v.  Seymour,  78,  196,  356 

Mississ.  &  Missouri  R.  R.  Co.  v. 

Ward, 211 

Mitchell  V.  Bunch,      .         .     360,  3til 

V.  Burnham,  .         .110 

V.  Lennox,    .         .         .     346 

V.  Manufacturing  Co.,  .     220 

V.  Mitchell,  .      201,  263,  274 

V.  Oakley,     .         .         .194 

V.  Smith,       ...       19 

V.  Sproul,      .  .  .269 

V.  Wilson,     ...       88 

V.  Winslow, ...       54 

Mix  w.  Hotchkiss,        .         ,     121,302 

Moale  V.  Buchanan,    .         .         85,  86 

Mobile  Ins.  Co.  v.  Huder,   .         .     270 

&c.,  R.  R.  Co.«.  Talman,     310 

Mook  V.  Candiff,  .         .         .198 

Moderwell  v.  Mullison,       .  .     240 

Mofht  V.  McDonald,    ...       33 

Mohawk  Bridge   Co.  v.  Utica   & 

Schenectady  Railroad  Co 
Mollan  V.  Griffith, 
Molyneaux  v.  Collier, 
Monell  V.  Dickey, 
V.  Monell, 
Money  v.  Jordan, 
Monk  V.  Harper, 
Monro  v  Allaire, 
V.  Taylor, 
Monroe  v.  James, 
Montague  v.  Dudraan, 
V.  Lobdell, 
V.  Turpin,  . 
Montefiore  v.  Guedella, 
Montefiori  v.  Browne, 
Montgomery  I'.  Milliken, 
Moodie  v.  Bannister, 
Moody  V.  Payne, 
Mooers  v.  White, 
Moore  v.  Anderson, 
V.  Appleton, 
V.  Auditor, 
V.  Beason, 
V.  Bray,    . 
V.  Burrows, 
V.  Cable.  . 
V.  Crofton, 
V.  Connell, 
V.  Gamble, 
V.  Green, 


263, 


211 
275 
.  346 
.  282 
57,  58 

196,  356 
.  226 
61 
.  88 
.  37 
.  194 
.  317 
,  319 
.  105 
31,  151 
.  136 
.  314 
.  242 
.  227 
.  312 
.  208 
.  153 
.  110 
.  269 
81 

115,  118 
.  78 
.  110 
.  198 
.  303 


TABLE     OF     AMERICAN     CASES. 


Ixvii 


Moore  v.  Holcomb,     . 

. 

128 

Movan  v.  Hays,  . 

28 

V.  Hylton, 

196, 

356, 

363 

Mowatt  V.  Carow, 

400 

V.  Isley,    . 

269 

Muir  V.  Leitch,  . 

243 

V.  Mooney, 

48 

V.  Schenck, 

53 

r.  Moore, 

264, 

269, 

285 

I'.  Trustees, 

248, 

303 

V.  Murrah, 

315 

Mullin  I'.  Bloomer,     . 

87 

V.  Small,  . 

, 

86 

Mullings  V.  Trinder,  . 

84 

Moorer  v.  Korpmann, 

, 

77 

Mullock  V.  Jenkins,    . 

320 

Morehouse  v.  Cotheal, 

, 

208 

Mulloy  V.  Young, 

363 

Moreland  i'.  Atkinson, 

168 

Mulock  V.  Mulock, 

309 

V.  Lancasters, 

86 

Mulvauey  v.  Kennedy, 

210 

Morcnhaut  v.  Higuera, 

230 

Muraford  v.  Murray,    . 

57 

,  61 

Moreton  v.  Harrison,  . 

128, 

340 

Mundorf  «.  Kibourn,  . 

77 

Morey  v.  Forsyth, 

317 

Munsell  v.  Loree, 

77 

V.  Herrick, 

212 

Munson  v.  Munson,    . 

202 

Morgan  v.  Annis, 

248 

Murphey  v.  Calley, 

111 

V.  Higgins.     . 

, 

184 

Murphy  v.  Clarke, 

310 

Matter  of. 

, 

290 

V.  Jackson,    . 

319 

V.  Morgan, 

115, 

415 

V.  Nathans,   . 

101 

V.  Pope, 

103 

«•  Trigg, 

111 

V.  Scott, 

88 

Murray  v.  Ballou, 

157 

V.  Smith, 

199, 

403 

V.  Blatchford, 

363, 

400 

Morning  Star  i;.  Selby, 

248 

V.  Lord  Elibank,    . 

48 

Mornington  v.  Mornington, 

6 

1'.  Lylburn,     . 

144, 

157 

Morris  v.  Diilard, 

. 

302 

V.  Murray, 

243 

V.  Hoyt, 

88 

V.  Tolland,      . 

228 

V.  Lewis, 

76 

,  79 

Murrell  v.  Goodyear, 

88 

V.  Morris, 

55 

285 

287 

Murrill  v.  Neill, 

• 

243 

V.  Nixon, 

111, 

363 

Musselman  v.  Eshelman,    . 

61 

V.  Olwine, 

272 

Mustard  v.  Robinson, 

233, 

454 

V.  Parker, 

308, 

344 

Mutlow  V.  Mutlow,  "  . 

252 

&  Essex  R.R.  Co. 

V.  Blair, 

363 

Myers  v.  Hay,     . 

107 

Morrison  v  Beckwith, 

. 

270 

V.  Kenzie, 

21 

V.  Hart, 

, 

304 

V.  Myers,  . 

57, 

287 

V.  Kelley.     . 

153 

V.  Wade,  . 

286 

V.  Kurtz, 

243 

272 

/          V.  White, 

114 

V.  March,     . 

151 

V.  McLeod,  . 

84, 

183 

Nace  V.  Boyer,    . 

183 

V.  Taylor,    . 

269 

Nactrieb  v.  Harmony  Settlement, 

184 

Morrison's  Adm'r.  v.  Tenn.  Ins 

.Co. 

,270 

Nagle  V.  IngersoU, 

136, 

139 

Morrow  i'.  Brenizer,  . 

136, 

138 

139 

Nail  V.  Mobley,  . 

, 

310 

V.  Riley, 

240 

Nailer  v.  Stanley, 

. 

270 

Morse  v.  Martin, 

101 

Napier  v.  Catron, 

240 

Morss  V.  Elmendorf,  . 

, 

85 

V.  Elam, 

179 

Morton  v.  Adams, 

, 

61 

Nash  V.  Smith,   . 

205, 

334 

V.  Barrett, 

61 

Nathans  v.  Morris, 

61 

Mosby  V.  Taylor, 

107 

Natusch  V.  Irving, 

321 

V.  Wall,    . 

85, 

168 

Navulshaw  v.  Brownrigg,  . 

222 

Moser  v.  Libenguth,   . 

173 

Naylor  v.  Naylor, 

290 

Moses  V.  Murgatroyd, 

31, 

252 

Neale  v.  Hagthrop,     . 

21, 

307 

Mosher  v.  Mosher, 

233 

V.  Neales, 

78 

Moss  V.  Anglo-Egyptian 

Co. 

403 

1  Neatherley  v.  Ripley, 

86 

t'.  Bainbrigge,    . 

184 

!  N.  E.  Bank  v.  Lewis, 

363 

t'.  Hanson, 

, 

84 

1                      V.    Newport     Steam 

Motley  V.  Jones, 

239 

Factory  Co., 

310 

Mott  V.  Harrington,    . 

184 

».- Stockholders, 

&c.. 

321 

Moulton  V.  Camroux, 

182 

NeflF  i;.  Miller,      . 

272 

Mounce  v.  Byars, 

128 

346 

,347 

Netf 's  Appeal,    . 

57 

,  272 

Mount    Holly    Turnpike    Co 

.    V. 

Neill  V.  Keese,    . 

33 

Ferree,   . 

. 

. 

202 

Neilson  v.  McDonald, 

364 

Ixviii 


TABLE    OF    AMERICAN    CASES. 


Neimcewicz  v.  Gahn,  . 

173, 

269 

Nelson  v.  Barter, 

205 

V.  Boyce, 

162, 

163 

V.  Carrington, 

121 

V.  Clay,    . 

268 

V.  Dunn,           .      272 

402, 

403 

V.  Everett, 

104 

%K  Harris, 

220 

V.  Lee,     .         .         . 

285 

V.  Owen, 

196, 

356 

V.  Pinigar, 

208 

V.  Robinson,    . 

356 

V.  Rockwell,    . 

198 

Neptune  Ins.  Co.  v.  Dorsey, 

270 

Nesbit  V.  Lockman,     . 

, 

184 

V.  Moore, 

81 

Neve  V.  Pennell, 

165 

Neves  v.  Scott,    . 

40,  42 

Neville  v.  Demeritt,    . 

364 

V.  Merchants'  Insurance 

Company, 

. 

83 

Nevitt  V.  Gillespie, 

199, 

208 

Nevius  V  Dunlap, 

171 

Newberry,  In  re. 

282 

New  Brunswick  Co.  v.  Muggeridge, 

336 

Newcomb  v.  St.  Peter's  Church, 

65 

Newcomer  v.  Wallace, 

263 

Newenhara  v.  Pemberton,  . 

47 

N.  H.  Savings  Bank  v.  Colcord, 

268 

New  Jersey  Franklenite  Co 

V. 

Ames,      .... 

315 

Newland  v.  Rogers,     . 

310 

Newlin  v.  Freeman,     . 

46 

New  London  Bank  v.  Lee, . 

312, 

321 

Newman  v.  Chapman, 

157 

V.  Kendall,   . 

, 

315 

New  Market  v.  Smart, 

62 

Newmen  v.  Bean, 

239 

Newport  v.  Cook, 

286 

287 

Newsom  v.  Bufferlow, 

168 

Newton  v.  Swazey, 

86 

New  York  Steamboat  Co.  v. 

t^ew 

Jersey  Co., 

272 

Nice's  Appeal,     . 

153 

NichoU  V.  Trustees,    . 

199 

392 

Nicholls  V.  Peak, 

156 

V.  Roe, 

193 

Nichols  V.  Levy, 

42 

V.  Perry  Patent  Arm 

Co., 

352 

NicoU  V.  Mumtord, 

268 

Matter  of. 

281 

V.  Ogden, 

. 

233 

Niles  V.  Anderson, 

336 

Nimmo  v.  Stewart, 

303 

Nisbett  V.  Cantrell,     . 

. 

399 

Nix  V.  Bradley,    . 

45 

Nixon  V.  Richardson, 

, 

361 

Nixon's  Appeal, 

33 

Noble  V.  vVilson, 

196, 

356 

Nodine  v.  Greenfield 
Nokes  V.  Seppings, 
Norcross  v.  Widgery 
Norment  v.  Wilson, 
Norris  v.  Clymer, 

V.  Hill,     . 

V.  Jackson, 

V.  Vernon, 
North  American  Coal  Co.  v 


316 

350 

153 

231 

285 

268 

77 

241- 

Dyett, 

46,  346 

North  Bait,  Assn.  v.  Caldwell,  61 

Northampton  Paper  Mills  v.  Ames,  1 14 

Northrop  v.  Hatch,      .         .     3,  5,  334 

Norton  v.  Coons,  .         .         .     269 

Norwich  V.  Hubbard,  .         .114 

&c.  R.  R.  Co.  V.  Storey,       20 

Norwood  V.  Norwood,  .         .231 

Nourse  v.  Allen,  .         .         .     309 

V.  Prime,  .         .         .227 

Noyes  v.  Blakeman,    ...       46 

V.  Sawyer,         .      312,  321,  346 

Nugent  V.  Riley,  ,         .         .     Ill-- 

t>.  Vetzera,      .         .         .282 
Nunn  V.  Fabian,  ...       86 

V.  Harvey,  .         .         .286 

Nurse  v.  Lord  Seymour,  .  .  85 
Nutbrown  v.  Thornton,  .  .  77 
Nutt  V.  Nutt,        ....       93 

Obert  V.  Obert,   ....       61 

Obrien  v.  Elliott,         .         .         .     363 

Ocean  Ins.  Co.  v.  Fields,     .         .         3 

Ochiltree  v.  Wright,   ...       58 

O'Connor  v.  Debraine,         .         .     360 

V.  Tack,       '  .         .  4,  15 

Odenbaugli  v-  Bradford,      .         .Ill 

Offenhouse  v.  Burleson,       .         .       86 

Ogden  V.  Astor,  179,  227,  228,  239,  246 

V.  Glidden,       .         .         .270 

Oglander  v.  Oglander,         .         .       39 

O'Hara  v.  Shepherd,  408,  412,  415,  418 

O'Harra  v.  Cox,  .         .         .     335 

Ohio  V.  Baum,     ....       82 

V.  Ellis,       .         .         .         .302 

Ins.  Co.  V.  Ledyard,  .         .     153 

V.  Ross,  .         .     153 

Life  Ins.  Co.  v.  Winn,     269,  389 

Okeson's  Appeal,        .         .         .     275 

Oldham  v.  Oldham,     .         .         .183 

V.  Rowan,      ,         .         .317 

Olds  V.  Cummings,      .         .      110,  144 

Olive  V.  Dougherty,    ...       33 

Oliver  v.  Mutual  Comm.  Marine  Ins. 

Co.,  .  .  .  .168 
V.  Palmer,  .  .  23,  312 
V.  Piatt,  ....  310 
Onslow  V.  Wallis,  ...  32 
Ontario  Bank  v.  Schermerhorn,  346 
Oppenheim  v.  Leo  Wolf,  .  .  205 
Orcutt  V.  Orms,  ....         .     339 


TABLE    OF     AMERICAN    CASES. 


Ixix 


Orear  v.  Tanner, 
Orleans  v.  Chatham, 

V.  Phoebus, 
Ormsbee  v.  Davis, 
Ormsby  r.  Bakewell, 
Orton  V.  Smith,  . 
Osbora  v.  Carr,  . 

V.  Phelps, 
Osborne  v.  Bank  of  United 

I'.  Endicoit, 
V.  Taylor, 
Osgood  V.  Franklin, 
Ostell  i\  Lepage, 
Oswald  V.  McGehee, 
Otes  V.  Sill, 
Otlej-  I'.  Havilaud, 
Overholt's  Appeal, 
Owen  V.  Hotnan, 

V.  Paul,     . 
Owens  V.  Cowan, 

V.  Miller, 

V.  Ranstead, 
Owing's  Case, 
Owings  t'.  Baldwin, 
V.  Emery, 
V.  Hull, 
Owongs  V.  Myers, 
Oxford's  (Earl  of)  case, 
Ozley  V.  Ikelheimer, 

Packer  v.  Sunbury,  &c.,  R 

Padbury  v.  Clark, 

Padwick  v.  Hurst, 

Page  V.  Allen, 
V.  Cox, 
V.  Page, 
Re,     . 

Pahlman  v.  Graves, 

Pain  V.  Coombs, 
V.  Packard, 

Paine  t*.  Wilcox, 

Pallen  v.  Agric.  Bank 

Palmer  v.  Guernsey, 
V.  Harris, 
V.  Richardson, 
r.  Van  Doren, 

Paunell  v.  Farmers'  Bank, 

Pardee  v.  De  Cala, 

Parish  v  Lewis, 
V.  Sloan, 

Park  V.  Ballentine, 
?'.  Johnson, 

Parke  v.  Seewright,    . 

Parker  v.  Carter, 

V.  Culvertson, 
V.  Foy,     . 
V.  Gilliam, 
V.  Nightingale, 
V.  Parker, 


28 
.     233 

241,  242 
.  364 
.      198 

162,  163 

85,  172 

States, 

20,  363 

.       33 

.     203 

79,  174 

.     260 

.     177 

123,  150 
.      114 

243,  246 
.     352 

166,  167 
.  138 
.  268 
.  198 
.  291 
84,  86 
.  208 
.  303 
.  157 
.  194 
.       45 

R.,   .     356 

96 

.     222 

.     313 

.     246 

21,  33,  101 

.     301 

.     243 

86 

.     268 

.       87 

270,  272 

.      Ill 

.     217 

86,  87 

.     364 

.     121 

.     373 

.     243 

310,  335 

.     312 

79 

.       86 

6,  304,  305 
.  268 
.  151 
.  251 
.  208 
.       86 


Parker  v.  Pierce, 

, 

153 

V.  Taswell, 

77 

V.  Vose,  . 

61 

V.  WiUs, 

. 

86 

V.  Winipeseogee  Lake  Cot 

ton  and  Woollen  Co 

J 

210 

Co.  r.  Jewell, 

128 

Parkhurst  v.  Cummings,     . 

115 

V.  Van  Courtland, 

86,  91 

Parkin  v.  Thorold, 

87,  88 

Parkinson  v.  Trousdale, 

. 

8 

Parkist  v.  Alexander, 

153 

Parkman  v.  Welch,     . 

270 

Parmelee  v.  Lawrence, 

111 

Parret  v.  Shaubhut,    . 

153 

Parrish  v.  Coons, 

77 

363 

Parson  v.  Bedford, 

376 

V.  Bowne, 

335 

Parson's  Adm'r.  v.  Wilson, 

167 

Parsons  v.  Parsons,    . 

48 

Partridge  v.  Havens,  . 

33, 

101 

Pascalis  v.  Canfield,   . 

252 

Patchin  v.  Lamborn,  . 

, 

88 

Paterson  &  Hudson  River  R. 

R. 

Co.  V.  Jersey  City,  . 

. 

199 

Patterson  v.  Ackerson, 

. 

376 

V.  Chalmers, 

268 

p.  Gaines,   . 

310 

363 

V.  Hobbs,     . 

21 

V.  Patterson, 

251 

334 

».  Scott,      .       263, 

275 

276 

V.  Yeaton,   . 

86 

Pattison  v.  Blanehard, 

2.39 

V.  Hull, 

392 

V.  Shaw, 

315 

Patton  V.  Ash,    . 

364 

V.  Borough,     . 

151, 

153 

V.  McClure, 

. 

86 

r.  Schooner  Randolph,  . 

268 

Patty  V.  Pease,    . 

270 

Paul  V.  Fulton,   . 

151 

V.  Squib,     . 

61 

Paulding  v.  Watson,  . 

363 

Paulin  V.  Kaighn, 

268 

PaulUng  t>.  Sturgus,   . 

21 

Pawling  V.  Jackson,    . 

192 

Paxtoa  V.  Harner, 

270 

Payne  v.  Matthews,    . 

243 

Paynes  v.  Coles, 

363 

Payton  t».  Smith, 

268 

Peabody.  v.  Tarbell,     . 

33 

Peace  v.  Hains,  . 

106 

Peachy  v.  Somerset,   . 

107 

Pearce  v.  Morris, 

113 

t".  Olney, 

198 

Pearl  v.  Nashville, 

221, 

222 

Pearpoint  v.  Gratiam, 

241 

Pearse  v.  Dobinson,    . 

331 

Pearson  v.  Benson, 

184 

V.  Daniel, 

151 

Ixx 


TABLE     OF     AMERICAN     CASES. 


Pearson  v.  Darrington 

, 

.     402 

Perry  v.  Parker, . 

, 

195 

V.  Diickham, 

.     269 

Person  v.  Nevitt, 

, 

418 

V.  Rockhill,   . 

.       31 

Persch  v.  Quiggle, 

310 

V.  Seary, 

.      Ill 

Peter  v.  Beverly, 

37 

136 

V.  Seay, 

.      Ill 

Peters  v.  Florence, 

168 

Peck  V.  Ashley, 

19,  20 

V.  Goodrich, 

151 

153 

V.  Craue,    . 

.      199 

Peto  V.  Hammond, 

151 

V.  Elder,     . 

.     211 

V.  Railroad  Co., . 

81, 

207 

V.  Ellis,       . 

.     268 

Petrie  v.  Clark,  . 

251 

V.  Fisher,   . 

.     246 

Pettit,  Matter  of, 

293 

V.  Sanderson, 

.     399 

Pettitt  V.  Chandler,     . 

10 

308 

V.  Woodbridge, 

.     194 

In  re, 

297 

Peckham  v.  Barker, 

.       86 

V.  Jennings,     . 

, 

20 

Peebles  v.  Reading, 

.       33 

Petty  V.  Petty,     . 

180 

Peer  v.  Cookerow, 

.     406 

Peyton  v.  Alcorn, 

. 

285 

Pegg  V.  Corder,  . 

.       77 

V.  Smith, 

280 

V.  Wisden, 

87,  88 

Phares  v.  Barbour, 

, 

268 

Pegler  v.  White, 

.       84 

V.  Walters, 

233 

Peile  V.  Stoddart, 

.       17 

Pharis  v.  Leachman,  . 

'250 

Pell  V.  Ball, 

230,  231 

Phelps  &  Spafford  v.  Curtis, 

23 

Pell  a  V.  Schott,  . 

.     331 

V.  Green, 

231 

Penaberton  v.  Pemberton, 

92,  94 

V.  Piatt,  . 

13 

V.  Riddle, 

.     317 

V.  Pond,  . 

136 

Pence  v.  Pence,  . 

.     312 

V.  Prothero,     . 

. 

346 

Pendleton  v.  Fay, 

.     151 

V.  Stewart, 

230 

V.  Wambersie, 

.     220 

Phila.  &  Erie  v.  Catawissa  R 

r'. 

Pennell  v.  Deflfell, 

57,60,  221 

Company,     . 

321 

V.  Roy,  . 

.      198 

Wilra.   &   Bait.   R.    R 

V. 

Pennington  v.  Gibson, 

.     395 

Woelpper,    . 

110 

V.  Gittings, 

.     363 

Philbrook  v.  Delano,  . 

, 

128 

V.  Governor, 

.     167 

Philhower  v.  Todd,     . 

194 

Pennock  v.  Coe, . 

.       54 

Philips  V.  Crammond, 

83 

142 

V.  Swayne,    . 

.     240 

V.  Thompson,. 

. 

91 

Pennock's  Estate, 

31 

Phillips  V.  Beldcn, 

227 

228 

Pennsylvania  V.  Wheeling  B 

ridge 

V.  Berger, 

83 

Co., 

.     211 

V.  Cook, 

242 

Penny  v.  Cook,  . 

55 

V.  Edwards,  . 

86 

V.  Davis,  . 

.       37 

V.  Evans, 

193 

V.  Turner, 

.       30 

V.  Hollister,  . 

177 

Pensenneau  v.  Pensenneau 

.     309 

V.  Hudson,     . 

200 

Pensoneau  v.  PuUiam, 

.  ■  111 

V.  Hulsizer,  . 

111 

389 

Pensacola  R.  R.  v.  Spratt, 

.     309 

V.  Moore, 

183 

People  V.  Mercein, 

280,  283 

V.  Phillips,    . 

. 

222 

V.  San  Francisco, 

.     177 

V.  Prevost,     . 

8 

308 

V.  Third  Avenue  Co 

.,       .     211 

V.  Richardson, 

363 

V.  Wilcox, 

280,  281 

V.  Stauck,     . 

77 

People's  Bank  v.  Pearsons, 

.     268 

PhJIlipson  V.  Keary,    . 

169 

Perin  v.  Carey,    . 

.      198 

Philpott  V.  Elliott, 

. 

85 

Perkins  v.  Hadsell, 

86 

V.  St.  George's  Hospital, 

67 

V.  Hallowell,  . 

196,  356 

Phoenix  v.  Ingraham, . 

20 

V.  Kershaw,    . 

.     269 

Phyfe  V.  Warden, 

77 

Matter  of. 

.     293 

Piatt  V.  Oliver,   . 

33 

.318 

V.  McGavock, 

.      179 

V.  St.  Clair, 

270 

V.  Nichols, 

.     363 

Pierce  v.  Brown, 

117 

V.  Swank, 

.     151 

V.  Fuller, 

107 

V.  Wright, 

77,84 

V.  Goldsberry,  . 

268 

Ferine  v.  Striker, 

.     194 

Matter  of. 

280 

Perry  Herrick  v.  Attwood, 

.      150 

V.  McKeehan,   . 

33 

V.  Boileau, 

45 

V.  Milwaukee  R.  R., 

110 

V.  Carr,      . 

.     303 

V.  Pierce, 

33 

TABLE     OF     AMERICAN     CASES. 


Ixxi 


Pierce  Tiernan,  . 

243 

Porter  v.  Witham, 

211 

V.  Trigg, . 

233 

Post  V.  Dart, 

. 

364 

V.  West's  Executors, 

363 

V.  Dorr, 

121 

Pierson  v.  David, 

128 

V.  Kimberly, 

220 

V.  Ryerson,     . 

194 

V.  Mackall,         263,  272 

291 

315 

V.  Stcinmeyer, 

239 

Postlewait  1-.  Howes,  . 

258 

Piggott  V.  Strattoii,    . 

208 

Postley  V.  Kain,  . 

, 

232 

Pike  v.  Armstead, 

153 

Poston  V.  Eubank, 

270 

Pinchain  v.  CoUard,   . 

128 

Potier  V.  Barclay, 

234 

Pinckard  v.  Pinckard, 

79 

Potter  V.  Everett, 

174 

Pinckney  v.  Pinckney, 

96 

263 

V.  Moses,  . 

239 

Pinkstoa  v.  Taliaferro, 

269 

V.  Stevens, 

110 

Pinney  v.  Fellows, 

28,  33 

».  Tuttle, . 

. 

88 

Pinnock  v.  Clough, 

33 

392 

V.  Waller, 

15 

Piatard  v.  Martin, 

174 

Potts  V.  Blackwell,      . 

243 

Pirtle  I'.  Penn,    . 

240 

Ex  parte,    . 

, 

286 

Pitcher  v   Barrows,     . 

153 

V.  Whitehead,    . 

77 

Pitney  v.  Leonard, 

151 

Powell  V.  Batson, 

399 

Pitts  v.  Cable,     . 

111 

Powell  V.  Central  Plank  Co., 

77 

V.  Hooper,  . 

308 

V.  Firemans'  Ins.  Co., 

169 

Pittsburgh  R.  R.  v.  Schaefifer, 

268 

«;.  Manufacturing  Co. 

33 

233 

Place  I'.  Sweetzer, 

242 

t'.  Xorth, 

246 

Piatt  I'.  McClure, 

111 

V.  Thomas, 

. 

77 

Pleasants  v.  Glasscock, 

221 

309 

V.  Williams,     . 

. 

118 

V.  Ross, 

192, 

376 

Power  t'.  Reeder, 

222 

Pledge  V.  Buss,   . 

106 

Powers  V.  Bergen, 

285 

Plimpton  I'.  Fuller,     . 

261 

V.  Butler, 

, 

198 

Plowdeu  V.  Hyde, 

173 

V.  Hale,  . 

79 

Plume  V,  Bone,  . 

153 

t7.  Heery, 

210 

Poillon  V.  Martin, 

184 

Powers'  Appeal, 

186 

Poindexter  v.  Davis,  . 

3 

Powys  I".  Blagrave, 

, 

208 

V.  Henderson,   . 

208 

Pragoff  V.  Heslep, 

, 

268 

v.  Jeffries, 

47 

Prater  v.  Miller, .         .     ■     . 

, 

77 

i>.  McCannon,    . 

111 

Pratt  V.  Norsham, 

, 

303 

Pointup  V.  Mitchell,    . 

222 

V.  Philbrook,     . 

. 

177 

Polhemus  v.  Trainer, . 

110 

V.  Taliaferro,    33,  136, 

137, 

138, 

Polk  V.  Gallant, 

270 

317 

139 

V.  Reynolds, 

112 

V.  Thornton, 

, 

51 

Pollard  V  Collier, 

319 

V.  Wright, 

. 

282 

V.  Pollard,      . 

94 

Prentice  i'.  Achorn,    . 

. 

84 

Pomeroy  v.  Pomeroy, 

309 

r.  Buxton,     . 

. 

221 

V.  Sigerson, 

239 

Prescott  V.  Hubbell, 

346 

Pooley  ».  Budd, . 

91 

Preston  v.  Dunn, 

281 

Poor  V.  Carleton, 

196 

356 

V.  Hennig, 

, 

268 

Pope  r.  Andrews, 

364 

V.  Whitcomb, 

168 

V.  Elliot,     . 

43 

Prevost  V.  Gratz, 

6*1 

399 

V.  Henry,    . 

153 

Prewett  v.  Coopwood, 

183 

V.  Jackson, 

285 

Prewitt  V.  Perry, 

198 

V.  Melone,  . 

315 

Price  V.  Berrington,   .      176 

182 

303 

Porcher  v.  Reid, 

46 

».  Clevenger,    . 

196, 

356 

Port  Clinton  R.  R.  Co.  v.  Cleve- 

V. Griffin, 

, 

88 

land  and  Toledo  R.  R.  Co. 

• 

81 

V.  Griffith, 

77 

Porter  v.  Clements,     . 

315 

».  McDonald,     . 

151 

153 

V.  Cole,     . 

153 

V.  Meth.  Church, 

67 

V  Dubuque, 

128 

V.  Nesbit,  . 

250 

r.  Doby,    . 

40 

r.  Newman, 

151 

V.  Patterson,     i 

228 

V.  Price,    . 

183 

,  233 

V.  Spencer, 

222 

360 

V.  Salisbury, 

77 

V.  Turner, 

99 

101 

I'.  Tyson,  . 

389 

V.  Williams, 

. 

355 

Pride  v.  Boyce,  . 

. 

270 

Ixxii 


TABLE    OF    AMERICAN    CASES. 


Prideaux  v.  Lonsdale, 

183 

Primmer  v.  Patten,     . 

n 

Prince  v.  Logan, 

286 

Prince  Albert  ».  Strange, 

214 

Printup  V.  Mitchell,    . 

86 

Prioleau  v.  The  United  States,    2, 

314 

Pritchard  v.  Hicks,     . 

258, 

316 

V.  Wallace,. 

33 

Probasco  v.  Johnson, 

123 

Proby  V.  Landor, 

31 

Pry  or  v.  Wood,  . 

, 

144 

Pugh  V.  Bell. 

. 

33 

V.  Currie,  . 

246 

V.  Good,     . 

86 

V.  Pugh,     . 

. 

33 

Pulsford  I'.  Richards,  . 

177 

Purcell  V.  Maddox, 

. 

319 

V  Miner, 

86 

Purdy  V.  Doyle,  . 

252 

257 

V.  Purdy, . 

. 

33 

Purviance  v.  McClintee, 

. 

239 

Pusey  V.  Pusey,  . 

77 

V.  Wright,         .      2C 

7, 

363, 

364 

Putnam  Free  School  v.  Fisher,  .       37 

V.  Sweet,        .         .         .     320 

Pyrke  v.  Waddingham,       ,         ,       84 

Quackenbush  v.  Van  Riper,  196,  356 
Quinn  v.  Brittain,  .  .  .118 
Quirk  V.  Thomas,        .         .         .168 


Rabbett  v.  Squire 
Racouillat  v.  Rene,     . 

«.  Sanswain, 
RadclifFv.  Rowley,     . 
Radcliffe,  Ex'rs.  of,  v.  Wightman 

V.  Rusbworth, 
Ragan  v.  Echolls, 
Ragland  v.  Justices,    . 
Ragsdale  v.  Holmes,  . 
Raines  v.  Jones, 
Rainey  v.  Yarborough, 
Rajah  of  Coorg  v.  East  India  Co. 
Ralston  v.  Hughes, 

V.  Telfair, 
Rambo  v.  Rambo, 
Ramey  v.  Green, 
Ramsay's  Appeal, 
Ramsey  v.  Lewis, 

V.  Liston, 
Randall  v.  Phillips,    . 

V.  Silverthorn, 
Randolph  v.  Kinney,  . 
V.  Randolph, 
Randolph's  Appeal,    . 
Rankin  v.  Harper, 

V.  Lh,y,   . 

V.  Maxwell,  . 
Rathbone  i;.  Clark,  . 
Ravenscroft  v.  Jones, 


315,  31 


20 


343 
153 
123 
303 
227 
239 
364 
110 
250 
21 
269 


114 

32 

336 

413 

272 

269 

86 

111 

153 

1,  221 

227 

402 

33 

86 

90 

268,  270 

.  105 


Rawling  v.  Stewart,  . 

Ray  V.  Bogart,  . 

Ray  &  Thornton  v.  Bank  of  Ken 

tucky,      .... 
Raymond  v.  Crane,     . 
Rayner  v.  Pearsoll,     . 
Read  v.  Long,     . 

V.  Robinson, 

V.  Simmons, 
Reade  v  Lacy,   . 

V.  Woodrnffe,  . 
Reading  v.  Blackwell, 
Rearich  v.  Swinehart, 
Reaves  v.  Garrett, 
Receiver  of  the  City  Bank  of  Buf 

falo,  In  re,      . 
Receivers  v.  Patterson  Gas  Ligh 

Co.,         .... 
Redd  V.  Wood,  . 
Redmon  v.  Green, 
Redmayne  v.  Forster, 
Redmond  v.  Dickerson, 
Reed  v.  Bachelder, 

V.  Beazley, 

V.  Cline,     . 

V.  Kemp,    . 

V.  Morrison, 

V.  Murphy, 

V.  Sliepardson,  . 

V.  Sidener, 
Rees  V.  Berrington,    . 

V.  Waters, 
Reese  v.  Wyman, 
Reeves  v.  Baker, 
V.  Cooper, 
Reg.  V.  Smith,  . 
Reid  V.  Fitch,     . 

V.  Gilford,  . 

V.  Lamar,    . 

V.  Langlois, 

V.  Reid, 
Reigart  v.  White, 
Reilly  v.  Cavanaugh, 
Reitenbaugh  v.  Ludwick 
Relf  V.  Eberly,    . 
Rembert  v.  Brown, 
Remick  i'.  Butterfield, 
Remington  v.  Irwin,   . 
Remsen  v.  Remsen,     . 
Renton  v.  Chaplain,  . 
Renew  v.  Butler, 
Renwick  v.  Renwick, 
Repp  V.  Repp,     . 
Resor  v.  Resor,  . 
Respass  v.  Breckenridge, 
Rexford  v.  Widger,     . 
Reybold  v.  Dodd, 
Reynell  v.  Sprye, 
Reynolds  v.  Godlee,   . 
V.  Reynolds, 


118 

277 

189 
240 
227 

79 

37 
123 
216 

10 
136 
168 

92 

259 


355 

335 

227 

125 

335 

268 

45 

376 

402 

233 

239 

243 

179 

106,  268 

.       47 

168,  177 

29,  31,  306 

.     198 

.     283 

.       33 

.     211 

.       46 

6 

28,  352 

.     268 

.     335 

.      Ill 

.      175 

196,  228,  356 

61 

87,  88 

.      370,  383 

.      242,  263 

.       61 

23 

.      128 

33 

.     233 

.      175 

.221 

6,  14,  175,  177 

15 

.     231 


TABLE     OF     AMERICAN    CASES. 


Ixxiii 


Rhea  i-.  Forsyth, 

.     211 

Robert 

s  V.  Rose, 

128 

V.  ^Yhite,  . 

.     268 

V.  Tottan, 

227 

Rbines  v.  Baird, 

.     162 

V.  Welch, 

115 

Rhodes  v.  Bate, 

.     183 

Robertson  v.  Bingley,           8 

335 

344 

V.  Cousins, 

,     360 

V.  Maxcey, 

269 

t;.  Crockett,    . 

.     269 

V.  Shewell, 

15 

Rice  V.  Bernard, 

243,  246 

V.  Stephens, 

96 

310 

V.  Bixler,    . 

.     136 

V.  Sublett, 

31 

V.  Burnett, 

28 

Robeson  v.  Hornbaker, 

86 

V.  Downing, 

.     270 

V.  Pittenger, 

211 

V.  Rawiings, 

.       84 

Robinson  v.  Briggs,    . 

184 

I'.  Rice, 

.      159,  160 

V  Crowder, 

241 

V.  Tonnele, 

.     287 

V.  Fife, 

115 

Rich  V.  Catterson, 

.     168 

V.  Geldard, 

277 

Richards  v.  Att.-Gen.  of  Jar 

naica,     144 

V.  Governors,    136, 

138 

263 

Ex  parte, 

.     292 

V.  Kettletas, 

77 

».  Pierce, 

.     309 

V.  Lamond, 

6 

V.  Salter, 

.      203,  389 

V.  Lewis,     . 

397 

Richards'  Appeal, 

.     211 

V.  Loomis,  . 

109 

Richardson  v.  Baker, 

.     129 

V.  Mclvor,  . 

263 

275 

V.  Eyton, 

.     189 

V.  Pett, 

61 

r.  Hunt,  . 

.     320 

V.  Robinson, 

57 

174 

V.  Inglesby, 

.       29 

V.  Sampson, 

20 

V.  Jones, 

.       61 

V.  Wheelwright, 

45 

V.  McKinson, 

.     302 

V.  Williams, 

110 

V.  Merrifield, 

.     288 

V.  Willoughby,   . 

111 

V.  Wyatt, 

233,  246 

V.  Woodgate, 

10 

Richmond  v.  Aiken,  . 

.      115 

Robison  V.  Codman,  . 

233 

t'.  Foote,    . 

.       86 

Robson  V.  Whittingham,    . 

211 

V.  Gray, 

84 

Rochdale  Canal  Co.  v.  King, 

211 

Ricketts  v.  Montgomery, 

.       61 

Rocbford  v.  Hackman, 

42, 

282 

Rider  v.  Riley,    . 

8,  345 

Rockafellow  v.  Baker, 

177 

Ridgely  v.  Bond, 

,     406 

Rockw 

ell  V.  Folsom,  . 

23 

Ridgley  c.  Warfield,  . 

.     340 

V.  Hobby,    . 

123 

Ridgway  v.  Bank  of  Tenn 

essee,     198 

V.  Lawrence, 

77,  91 

V.  Toram,     .      3' 

n,  417,  418 

Rodgers  v.  Jones, 

121 

Ridgway's  Appeal,     . 

.     246 

V.  Norwill,     . 

217 

Ridley  v.  McXairy,     . 

,       86 

V.  Rodgers,    .      196, 

208, 

356 

Ridout  V.  Dowding,   . 

.       31 

Rodiguez  v.  Heffernan, 

243 

Riker  v.  Darke,  . 

.     230 

Rodman  v.  Zelley, 

79,  84 

Riley  v.  McCord, 

.     121 

Roebuck  v.  Harkins,  . 

197 

Rinehart  v.  Harrison, 

.     136 

Rogan 

V.  Walker, 

33, 

111 

Ring  V.  Ashworth, 

.      168 

Rogers 

V.  Challis, 

78 

Ringgold  V.  Bryan,     . 

.     363 

V.  Cincinnati, 

198 

I'.  Ringgold, 

55,  58,  61 

t>.  French, 

104 

Ringo  V.  Warder, 

.     313 

V.  Hill,    . 

285 

Ripple  V.  Ripple, 

.      151 

V.  Murray, 

33 

Rippy  V.  Grant, 

.      183 

V.  Rogers,       .        45, 

261, 

263 

Rittson  V.  Stordy, 

42,  51 

V.  Saunders     . 

77 

Roane  v.  Pickett, 

.     319 

V.  Solomons,   . 

356 

Robards  v.  Wortham, 

263.  275 

V.  Waterhouse, 

84 

Robb  V.  Mudge, 

.     243 

Roloson  V.  Carson,     . 

192, 

193 

V.  Stevens, 

.     243 

Roosevelt  v.  Draper,  . 

211 

Robbins  v.  Davis, 

14,  15 

V.  Ellithorp, 

12 

Roberts  v.  Anderson. 

196,  356 

Rorer  v.  O'Brien, 

48 

V.  Croft, 

.     124 

Rorke 

V.  Russell, 

356 

V.  Denny, 

82,  87,  88 

Rose  V 

Hart, 

222 

V.  Ebenhart, 

241,  246 

V. 

Jessup,   . 

141 

V.  Jackson,    . 

.     285 

V. 

Rose, 

309 

Matter  of,      . 

.     293 

V. 

Watson, 

36, 

128 

Ixxiv 


TABLE    OF    AMERICAN    CASES. 


Roser  v.  Randolph, 

211 

Rutherford  v.  Jones,  • 

230 

Rosevelt  v.  Fulton 

.     177 

V.  RufiP,     . 

183 

Roshell  V.  Maxwell, 

.     198 

Rutland  v.  Paige,        .         , 

403 

Ross  V.  Adams,  . 

,     389 

Rutledge  v.  Greenwood,     . 

268 

V.  Butler,    . 

.     211 

V.  Smith,     . 

28 

V.  Carter,   . 

.     364 

Ryan  v.  Dox, 

33 

V.  Clore,     . 

.     270 

V.  Shawneytown, 

310 

V.  Drake,    . 

.     136 

Ryno  V.  Darby,  . 

84 

V.  Gibbs,    . 

6 

V.  Norvell, 

111,  115 

Sabin  v.  Gilman, 

282 

V.  Prentiss, 

.     417 

Sahler  v.  Signer, 

118 

V.  Ross, 

.     351 

Sainsbury  v.  Jones,     . 

91 

V.  Union  Pacific 

R.  R 

.       81 

Salisbury,  Matter  of,  .         .     296,  385 

V.  Whitson, 

.     128 

Salmon  «;.  Claggett,    .    8,12,208,269 

Rossiter  v.  Cossit, 

.     233 

303,  363 

Rough  V.  Marshall, 

.     392 

V.  Cutis,         .         .       ei,   134 

Row  V.  Dobson, 

.       54 

Salomons  v.  Laing,    . 

319 

Rowan  v.  Sharpe's  Rifle  Company, 

Saltonstall  v.  Sanders, 

67 

110,  111 

Saltus  V.  Tobias, 

340 

Rowe  V.  Granite  Bridge  Co.,      .     211 

Sainsbury  v.  Denton, 

30 

V.  Tonkin, 

335 

Sammons  v.  Rose, 

138 

Rowland  i'.  Martindale 

221 

Sample  v.  Barnes, 

198 

V.  Morgan,  . 

42 

Sampson  v.  Sampson, 

101 

Rowlands  v.  Evans, 

243 

Samuel  v.  Berger, 

.     217 

Rowley  v.  Houghton, 

217 

Sanches  v.  Carriaga,  . 

.     197 

V.  Row\ey, 

185 

Sanders  v.  Rodway,    . 

.       45 

Rowton  V.  Rowton, 

233 

V.  McAlee,    . 

128 

Roy  V.  Wallink, 

77 

V.  Watson,    . 

269 

Royal  V.  McKenzie, 

363 

Appeal, 

94 

Royer's  Appeal, 

285 

Sandford  v.  Jackson, 

94 

Royston  v.  Royston, 

231 

V.  McLean,  . 

269 

Rozier  v.  Griffith, 

232 

Sarles  v.  Sarles, 

208 

Rucker  v.  Abel, 

3 

3,  101 

Saunders  v.  Albritton, 

197 

V.  Howard, 

393 

V.  Edwards, 

40 

V.  Robinson 

268 

r.  Frost,      .         .11 

8,   389 

V.  Wynne, 

175 

V.  Wilson,  . 

118 

Rudisell  v.  Watson, 

45 

Savage  v.  Benham,     . 

309 

Rugge  V.  Ellis,   . 

90 

Savannah  Bank  v.  Raskins, 

168 

Rumbly  v.  Stainton, 

346 

Sawyer  i;.  Hovey, 

171 

Rumbold  v.  Forteath, 

12 

V.  Mills, 

303 

Rumph  V.  Abercrombie, 

183 

Saxon  V.  Barksdale,   .         .     2[j 

1,   335 

Runney  Dey,  Matter  of. 

291 

Saylors'  Appeal, 

347 

Runnell  v.  Read, 

168 

Sayre  v.  Sayre,  . 

317 

Runnells  v.  Jackson, 

33 

V.  Townshends, 

33 

Runyun  v.  Mersereau, 

114 

Scales  V.  Collins, 

276 

Rush  V.  Madeira, 

416 

Scarlett  v.  Hunter,     . 

88 

Russ  V.  Hawes, 

30 

3,  304 

Scarsdale  v.  Curzon,  . 

42 

Russell  V.  Austin, 

233 

Schaefifner  v.  Grutzmacher, 

33 

17.  Chuxch, 

188 

Schalk  V.  Schmidt,     . 

.     355 

».  Clark, 

323 

Scheetz's  Appeal,       .         .     19 

9,  317 

V.  Failer, 

267 

Schemerhorn  v.  Barhydt,  . 

274 

V.  Howard, 

272 

Schenck  v.  EUingwood, 

99 

V.  Jackson, 

6,7 

Schenck's  Adm'r.  v.  Cuttrell, 

192 

V.  Lanier, 

335 

Schmidt  v.  Livingston, 

85 

V.  Laice, 

121 

Schmitheimer  v.  Eisernan, 

150 

V.  Russell, 

123 

Schnitzel's  Appeal,    . 

269 

V.  Southard, 

.     Ill 

Schofield  V.  Redfern, . 

57 

Rust  V.  Ware,     . 

.     198 

School  V.  Kirwin, 

60 

Rutherford  v.  Branch  Bank, 

269 

Dist.  No.  3  V.  McLoon,   8 

6,  346 

V.  Green, 

. 

.     136 

Com.  V.  Putnam, 

196 

TABLE    OF    AMERICAN    CASES. 


Ixxv 


SchoonerWilliamThomast;. Ellis,  268 

Shatt  V.  Carloss, 

288 

Schotsmams    v.   Lanchash 

ire  & 

Shaw  V.  Bunny, 

61 

Yorkshire  R.  R.  Co., 

.     127 

V.  Chester, 

205 

Schroder  v.  Schroder, 

.       94 

v..  Coble,  .         .         .         . 

286 

Schryver  v.  Teller, 

.     270 

V.  Coster, 

206 

Schuyler  v.  Hoyle, 

.     313 

V.  Thackray,    . 

84 

Schwarz  v.  Wendell,  . 

.     337 

Shays  v.  Norton, 

111 

Schwartz  v.  Stein, 

.     128 

Sheaffer's  Appeal, 

i2,  33 

Sckenck  v.  Sckenck's  Ex'r 

3.,       .       57 

Sheckell  v.  Hopkins, . 

111 

Scott  V.  Bilgerry, 

91 

Shed  V.  Garfield, 

335 

V.  Britton, 

.     Ill 

Sheen  v.  French, 

252 

V.  Clarkson, 

.     363 

Sheffield   Water  Works  v.  Yeo- 

V.  Freeland, 

61,   184 

raans,      .... 

199 

V.  Gallagher, 

.     153 

Sheidle  v.  Meishlee,  . 

173 

V.  Gamble, 

.     177 

Sheldon  v.  Bird, 

113 

V.  Hastings, 

.      161 

V.  Rockwell, 

199 

V.  Miller,  . 

4 

V.  Sheldon,  . 

33 

Scribner  v.  Allen, 

.     303 

V.  Smith, 

241 

Scrimeger  v.  Buckhannon, 

.     302 

Shepard  v.  Shepard,  . 

303 

Scudder  v.  Trenton  Del.  F 

alls,  .     210 

Shepherd  v.  Adams,  . 

270 

V.  Vanarsdale, 

.     136 

V.  Bevin,     . 

79 

Seabrook  v.  Rose, 

.     268 

V.  McEvers,         .    31, 

37,  38 

Sears  v.  Hyer,     . 

.     231 

V.  Shepherd, 

78 

V.  Dixon,  . 

.     Ill 

Sheppai-d  v.  Starke,  . 

309 

V.  La  Force, 

.     269 

Shermer  v.  Beale, 

192 

V.  Shafer, 

.     184 

Sherry  v.  Sansberry,  . 

285 

V.  Smith,  . 

.     128 

Sherwood  v.  Andrews, 

217 

Sebring  v.  Mersereau, 

.     230 

V.  Sutton, 

228 

Sechel  v.  Mosenthal,  . 

.        78 

Shields  v.  Arndt, 

211 

Second  Church  v.  Disbro^v 

,        .       31 

V.  Barrow,      .         .     34 

3    402 

Second  Cong.   Soc,  &c.  v. 

First 

V.  Commonwealth, 

168 

Cong.  Soc,  &c.. 

.     364 

V.  Thomas,     . 

309 

Sedgwick  v.  Cleveland, 

.     409 

Shine  v.  Wilcox, 

298 

Seevers  v.  Delashmutt, 

.     153 

Shinnie  v.  Coil, 

.     192 

Seguln  t'.  Maverick,  . 

.     417 

Shipley  v.  Ritter, 

210 

Seighortner  v.  Weissenbor 

n,       .     354 

Shipp  V.  Jameson, 

221 

Selby  V.  Stanley, 

.      128 

V.  Swann, 

168 

Sellers  i\  Stalcup, 

.     Ill 

Shirley  v.  Shirley, 

44 

Sellings  v.  Bumbgardner, 

.     316 

Shirras  v.  Craig,         .         .     11 

0,   162 

Sellman  v.  Bo  wen. 

.     235 

Shitz  V.  Diffenback,    . 

123 

Semmes  v.  Mayor  of  Colu 

mbus,     356 

Shobe  V.  Carr,    . 

103 

S.  E.  Railway  v.  Knoll, 

.       87 

Shoemaker  u.  Smith, 

33 

Sergeant  v.  Ingersoll,       i: 

)7,  159,  162 

V.  Walker,         .       5 

1,   233 

Seton  V.  Slade,  . 

90 

Short  V.  Mercier, 

2,6 

Severance  v.  Hilton,  . 

.     192 

V.  Price,   . 

78 

Sewell  t>.  Baxter, 

33 

V.  Skipwith, 

.     221 

Sexton  V   Wheaton,  .       1^ 

15,  146,  147 

Shotwell  V.  Mott,        .         ; 

65 

Seymour  i'.  Darrow,  . 

.     110 

V.  Murray,    . 

,     168 

V.  Delancy, 

.   77,  n,  84 

V.  Smith,     . 

21 

V   Hazard,   . 

.     360 

Shotwell's  Executor  v.  Mott, 

65 

V.  Long  Dock  Co 

.,        .     220 

Shoup  V.  Cook,  . 

.    107 

Shaeffer  v.  Chambers, 

.      118 

Shovelton  v.  Shovelton,     . 

31 

V.  Slade, 

.      191 

Shreve  v.  Black, 

210 

Shafer  v.  Davis, 

.     168 

V.  Brereton,    . 

l67 

Shaftesbury  v.  Arrowsmitl 

1,        .        12 

Shrewsbury  &c.,  R.  R.  v.  London 

356 

Shannon  v.  Marselis, 

.     270 

Shricker  v.  Field, 

198 

Sharkey  v.  Sharkey, 

.     Ill 

Shroyer  v.  Richmond, 

290 

Sharp  t'.  Mayor, 

.     177 

Shubrick  v.  Guerard, 

208 

V.  Morrow, 

.     364 

Shulters  v.  Johnson,  . 

263 

V.  Sharp, 

.     334 

Shults  V.  Moore, 

153 

Ixxvi 


TABLE    OF    AMERICAN    CASES. 


Shunk's  Appeal, 

257,  272 

Slowey  V.  McMurray, 

Ill, 

112 

Sidle  V.  Walters, 

33,  34 

Small  V.  Boudinot,     . 

303 

Sidmouth  v.  Sidmouth, 

33 

V.  Owings, 

363 

Siemon  v.  Schurck,    . 

,    ,       33 

Smallcomb's  Case, 

175 

Sigler  V.  The  Ba«k,    . 

.     243 

Smallwood  v.  Lewin, 

153 

Sigourney  v.  Munn,    . 

151 

244,  246 

Smedbury  v.  Mark, 

360 

Silcox  V.  Nelson, 

.    .     310 

Smith  V.  Babcock, 

177, 

346 

Silk  V.  Prime,     . 

243 

254,  257 

V.  Bailey, 

121 

Simmons  v.  North, 

.      168 

V.  Bangs, 

211 

V.  Tongue,  . 

.     243 

V.  Bank,   . 

210 

V.  Whitaker, 

.     259 

V.  Bartholemev 

v', 

320 

Simms  v.  Smith, 

.     399 

V.  Bowen, 

30 

Simpson  v.  Amnions, . 

.      110 

V.  Brittain, 

230 

V.  Downs,     . 

.     397 

V.  Burnham, 

305 

V.  Feltz, 

,     239 

V.  Clark,  . 

303, 

363 

V.  Fogo, 

.     335 

V.  Cummings, 

211, 

356 

V.  Hotel  Co., 

.     321 

V.  Elliott, 

183 

V.  Montgomery 

.      129 

I'.  Etches, 

313 

V.  Mundee,    . 

.      128 

Ex  parte, 

282 

V.  Simpson,  . 

.       45 

V.  Fisher, 

344 

V.  Watts, 

.     417 

V.  Fly,      . 

91 

Simonton  v.  Gray, 

.     233 

V.  Hurst,  . 

31 

Sims  V.  Aughtery, 

20,  310 

V.  Jackson, 

233, 

246 

Sinclair  v.  Jackson,    . 

57,  58 

V.  Jewett, 

109 

Singer  v.  Troutman,  . 

.     268 

V.  Jones,  . 

246 

Singleton  v.  Gayle,     . 

.        20 

V.  Kane,   . 

48 

Sinnickson  v.  Br-uere, 

.     386 

V.  Kay, 

U 

S3,  303 

363 

Siter  V.  Clanachan,    . 

.      136 

V.  Kincaid, 

363 

&  Co.  V.  McClanachan, 

162,   163 

V.  Kniskern, 

94 

Sites  V.  Keller,   . 

, 

86 

V.  Kornegay, 

314 

Sitler  V.  Walker, 

. 

.     242 

V.  Lasher, 

10, 

308 

Skidmore  v.  Romaine, 

. 

.     263 

V.  Levaux, 

221 

Skilbeck  v.  Hilton,     . 

.     191 

V.  Lockwood, 

211 

Skinner  v.  Baily, 

.     304 

V.  Lowe,  . 

243 

V.  Drayton,  . 

107 

240,  241 

V.  McConnell, 

199 

V.  Deming,   . 

, 

.      198 

V.  McCrar}', 

136 

V.  Judson,     . 

. 

3,4,5 

V.  McDougal, 

168 

V.  Matter  of, 

.     231 

V.  McVeigh, 

86 

V.  Miller, 

.     113 

V.  Manning  Ex' 

rs., 

113 

V.  Smith, 

, 

.     115 

V.  Marks, 

224 

V.  White,       . 

, 

107,   174 

V.  Matthews, 

28,  29 

Shipwith  Ex'r.  v.  Cunningham,        28 

V.  Moore, 

103 

114 

Skrine  v.  Simmons,    . 

176,  303 

V.  Mules,  . 

, 

243 

Slack  V.  W^alcott, 

.     406 

V.  Pilkington, 

118 

Slade  ti.  Street,  , 

.     248 

V.  Pincombe, 

313 

Slason  V.  Wright, 

. 

.     403 

V.  Pettingill, 

210 

Slater  v.  Maxwell, 

. 

.     347 

V.  Poyas, 

208 

Slaughter  v.  Harris,   . 

. 

.       77 

V.  Ramsay, 

33 

246 

V.  Trndle,  . 

90 

V.  Richards, 

, 

177 

Sledds  V.  Carey, 

.       96 

V.  Robertson, 

177 

Slee  V.  Bloom,    . 

. 

.     227 

V.  Smith,   33,  56,   86 

,  lOl", 

110, 

V.  Manhattan  Co., 

Ill, 

115,  389 

114,  115,  117,  19- 

i,  230, 

231, 

Slemmer's  Appeal,     . 

.     309 

30 

2,  309 

320 

Sloan  V.  Little,  . 

.        10 

V.  Tarlton, 

246 

V.  Moore, 

. 

.     243 

V.  Trenton  Falls  Co. 

• 

309 

V.  Whiteman,  , 

, 

.     416 

V.  Turrenture,  . 

168 

Slocam  V.  Catlin, 

. 

.     Ill 

V.  Underdunck, 

86 

V.  Marshall,   . 

2S 

,  33,  184 

V.  United  States, 

268 

V.  Slocum,     . 

.     138 

V.  Walker, 

168 

SlossoD  V.  Beadle, 

. 

.     107 

V.  Wainwright, 

222 

TABLE    OF    AMERICAN    CASES, 


Ixxvii 


Smith  I'.  Warr,   . 

t'.  Woodruff, 
Smithurst  v.  Edmonds, 
Snead  r.  McCoull, 
Sneed  v.  Atherton, 


136 

217 
110 
346 
233 


Snelgrove  v.  Snelgrove,  93,  94,  96,  162 
Snelling  t'.  Boyd.  .  .  .317 
Snelson  v.  Franklin,  .  .  .  179 
Snodgrass's  Appeal,  .  .  .  243 
Snowhill  V.  Snowhill,  33,  144,  285 
Snyder  v.  Griswold,  .  .  .Ill 
Soames  r.  Edge,  ...       77 

Society  for  Propagation  of  Gospel 

V.  Hartland,  .  .  .  312,  320 
Sohier  v.  Williams,  .  .  84,  316 
Soles  t'.  Hickman,  ...  77 
Solms  r.  McCulloch,  .  .  ,  153 
Soltau  f.  De  Held,  .  .  .211 
Somerset  (Duke  of)  v.  Cookson,  77 
Sopwith  V.  Maughan,  .         .       96 

Sorg  V.  German,  <fec.,  .         .     364 

Southard  v.  Gushing,  .         .     364 

V.  Morris  Canal,  .     210 

V.  Russell,  .         .         .     417 
Southeast  R.  R.  Co.  v.  Brogden,      221 
Southeastern  R.  R.  Co.  v.  Sub- 
Telegraph  Co.,         .         .         .309 
Southwestern  R.  R.  i-.  Thoma- 

son, 252 

Southern  Life  Ins.,  &c.,  Co.  v. 

Cole,        .         .         .         .  82,  88 

Southgate  v.  Montgomery,  .     198 

South  worth  i'.  Smith,  .         .     233 

Souza  V.  Belcher,  .  .  .  334 
Souzer  v.  De  Meyer,  .  .  .  339 
Spalding  v.  Conzelman,  .  .  86 
Sparhawk  v.  Buell,  .  .  .287 
Spaulding  v.  Alexander,  .  .  88 
Speakman  v.  Forepaugh,  .  .  84 
Speed's  Ex'r.  v.  Nelson's  Ex'r.,  .  254' 
Speer  v.  Erans,  .         .         .     153 

V.  McCart,         .         .         .102 
V.  Skinner,        .         .         .110 
r.  Speer,  ....     230 
Speights  V.  Peters,      .         .      243,  352 
Speiglemyer  v.  Crawford,  .         .177 
Spence  w.  Duren,  .178,  303 

V.  Whittaker,  .         .     177 

Spencer  v  Spencer,  ...  58 
Sperrys  Estate,  .         .         .     243 

Spickernell  r.  Hotham,  .  .  258 
Spiller  V.  Spiller,  .  •  .  .121 
Spirey  i'.  Jenkins,  .  .  .  322 
Spofford  V.  .Manning,  .  .  333,  335 
V.  Weston,  .  .  .153 
Spooner  I'.  McConnell.  .  208,211 
Spotswood  I'.  Pendleton,  .  .  285 
Spottswood  i\  Dandredge,  .  .  268 
Spread  r.  Morgan,      .         .  96,  97 

Spring  V.  Pride,  .         .         .184 


Spring  V.  So.  Car.  Ins.  Co.,  .  389 
Springle  v.  Shields,  ...  91 
Sproule  V.  Samuel,  .  .  .  364 
St.  Felix  V.  Rankin,  .  .  .  233 
St.  Helen  Smelting  Co.  v.  Tipping,  211 
St.  John  V.  Benedict,  .  77,  84 

St.  Mary's  Church  v.  Stockton, ,  84 
Stables,  Re,  ...  .  287 
Stackhouse  v.  Countess  of  Jersey,  162 


Stacy  V.  Pearson  &  Bobbits, 

20 

Stafford  v.  Bartholomew,   . 

77 

V.  Brown, 

303 

r.  Bryan, 

21 

V.  Mott, 

389 

V.  Van  Rensaelaer, 

128 

Stagg  V.  Jackson, 

136 

254 

Staines  v.  Shore, 

, 

177 

Stainton  v.  Carron  Co., 

, 

301 

V.  Cbadwick, 

9,  17 

Stallings  v.  Stallings, 

230 

Stamps  t'.  Birmingham, 

344 

Stanard  v.  Rogers, 

198 

Stanley  p.  Brennen,    . 

. 

33 

V.  Stocks, 

. 

270 

Stapilton  v.  Stapilton, 

. 

188 

Stapleton  v.  Langstaff, 

. 

285 

Stark  V.  Wood,  . 

. 

356 

State  V.  McGowen, 

. 

65 

of  Mississippi  v.  Johnson, 

President,      . 

195 

V.  Northern  Central  Rail- 

way Co., 

196 

V.  Paup,     . 

, 

168 

Bank  i;.  Edwards, 

. 

363 

V.  March, 

61 

V.  Titus,  . 

270 

».  Young, 

335 

Stearns  v.  Hubbard,   . 

. 

86 

V.  Page, 

337 

339 

Stedwell  v.  Anderson, 

. 

168 

Steedman  v.  Weeks,   . 

230 

231 

Steel  V.  Steel,     . 

, 

111 

Steele  v.  White, 

, 

188 

Steere  v.  Steere, 

28,  33 

Steinberger's  Trus.  v.  Potter, 

, 

42 

Steiger  v.  Hillen, 

235 

Stephens  v.  Cady, 

216 

V.  Stephens, 

. 

94 

V.  Terrell,    . 

. 

346 

Stephenson  v.  Haines, 

. 

111 

p.Traveners,  258 

260, 

268, 
270 

Sterling  v.  Brightbill,' 

, 

272 

Sterne  v.  Beck,   . 

. 

107 

Sterry  v.  Arden, 

101 

102 

Stevens  v.  Beekman, 

210 

V.  Cooper, 

270 

V.  Dewey, 

. 

417 

».  Gregg, 

261 

V.  Post, 

. 

363 

Ixxviii 


TABLE    OF    AMERICAN    CASES. 


Stevens  v.  Rutland  &  Bur 

ington 

Stuart  V.  Bute,    . 

282 

R.  R., 

. 

321 

V.  Carson, 

261 

V.  Smith, 

51 

233 

V.  Coalter, 

230 

V.  Wheeler,    . 

86 

V.  Kissam, 

263 

313 

V.  Yeatman,  . 

243 

Stuart's  Heirs  v.  Coalter, 

310 

Stewart  v.  Brown, 

33 

Stubbs  V.  Burwell, 

23 

V.  Crosby, 

.    "      . 

110 

Slump  V.  Findlay, 

93,  97 

V.  Drasha, 

3 

V.  Gaby, 

61 

V.  Heard, 

233 

V.  Rogers, 

270 

V.  Ives, 

128 

Sturges  V.  Cary, 

270 

V.  Ludwick, 

191 

V.  Longworth,      3 

13,  324 

418 

V.  McMinn,    . 

61 

Sturgis  V.  Chanipneys, 

47 

V.  Stone, 

20 

Sturtevant  v.  Goode, 

221 

224 

V.  Turner, 

379 

Stuyvesant  v.  Hale,     . 

37 

V.  Winters,     . 

207 

V.  Hall,     . 

153 

Stiles  V.  Brock,  . 

172 

V.  Hone,  . 

270 

Stillman  v.  Stillman, 

270 

V.  Peckham, 

6 

Stimson  v.  Lewis, 

320 

Sugden  v.  Crossland, 

57 

Stires  v.  Stires,  . 

274 

Sullivan  v.  Blackwell, 

184 

Stocker  v.  Brockelbank, 

239 

V.  Ferguson, 

128 

V.  Wedderburne, 

207 

V.  Tuck, 

77 

Stocks  V.  Dobson, 

53 

V.  Winthrop, 

103 

Stockton  V.  Ford, 

184 

Summers  v.  Roos, 

110 

Stoddart  v.  Tuck, 

86 

Sumner  v.  Hampston, 

233 

246 

Stoever  v.  StCEver, 

111 

V.  Marcy, 

198 

Stokes  V.  Knarr, 

198 

V.  Rhodes, 

153 

V.  LandgrafF,   . 

217 

Surgett  V.  Byers, 

174 

Stol worthy  v.  Bancroft, 

184 

Sutton,  &c.,  Co.  V.  Hitcher 

s,      . 

347 

Stone  V.  Anderson,     . 

309 

V.  Wilders, 

61 

V.  Godfrey, 

189 

Suydam  v.  Beals, 

198 

V.  Hale, 

168 

V.  Northwest  Ins. 

Co.,  . 

303 

V.  Moore, 

333 

Swabey  v.  Sutton, 

9 

Stoner  v.  Zimmerman, 

136 

Swaisland  v.  Dearsley, 

85 

Stoney  v.  Shaltz, 

270 

Swan  V.  Dent,     . 

317, 

346 

Stoolfoos  V.  Jenkins,  . 

176 

Swartzer  v.  Gillet, 

175 

Storm  V.  Maun,  . 

208 

Swayne  v.  Lyon, 

84 

Storms  V.  Storms, 

269 

Swayze  v.  Swayze,      . 

302 

310 

Story  V.  Conger, 

168 

Sweet  V.  Benning, 

216 

V.  Livingston,   . 

312 

383 

V.  Mitchell, 

111 

V.  Moon,     . 

243' 

V.  Parker, 

20 

111 

V.  Norwich  and  Wor 

tester. 

192 

V.  Sweet, 

283 

Story's  Ex'rs.  v.  Holcombe 

215 

Sweeting  v.  Sweeting, 

50 

Stouffer  V.  Machen,     . 

363 

Sweezy  v.  Thayer, 

285 

Stoutenberg  v.  Thompkins 

V 

-,  82 

Swift  V.  Dean,     . 

21 

Stoutenburgh  v.  Peck, 

196, 

356 

V.  Eckford, 

310 

Stovall  V.  N.  Bank  of  Miss. 

J 

336 

V.  Swift,     . 

283, 

356 

Stover  V.  Bounds, 

111, 

113 

Swinburn  v.  Swinburn, 

33 

V.  Eycleshimer, 

54 

Swineborne  v.  Nelson, 

17 

Stow  V.  Russell,. 

88 

Synnot  v.  Simpson,    . 

^1 

Stowe  V.  Thomas, 

216 

Sypher  v.  McHenry,    . 

61 

Strange  v.  Bell,  . 

202 

V.  Watson,     . 

309 

Tabb  V.  Archer, 

288 

Strathmore  (Countess of)  u. 

Bowes 

180 

Taber  v.  Hamlin, 

HI 

Straughan  v.  Wright, 

230 

Taggert  t».  Bolden, 

363 

Streatfield  v.  Streatfield,    . 

92,  94 

Tainter  v.  Clark, 

65 

Streator  v.  Jones, 

111 

Talbot  V.  McGee, 

402 

Streeper  v.  Williams, 

107 

V.  Pierce, 

.     243, 

246 

Strong  V.  Blanchard, 

118 

V.  Scott,  . 

354 

V.  Stewart, 

111 

Talley  v.  Starke, 

285 

Stroughill  V.  Anstey, 

157 

Tallmadge  v.  Lovett, . 

335 

TABLE    OF    AMERICAN    CASES, 


Ixxix 


Tallman  v.  Woods, 

40 

Thompson  v.  Bostwick, 

268 

Talmage  v.  Pell, 

. 

18 

V.  Brown,  . 

252, 

258, 

287 

Tambro  v.  Gamble,     . 

251 

V.  Diffenderfer,  . 

363 

Tankcrsley  v.  Anderson,    . 

270 

V.  Dulles,  . 

. 

84 

Tarbel 

V.  Tarbell,      . 

78 

V.  Engle,    . 

. 

12 

Tarleton  v.  Vietes, 

17 

V.  Edwards, 

. 

399 

Tassell 

V.  Smith, 

163 

V.  Fisher,  . 

228 

Tassey 

V.  Church, 

240 

V.  Gossitt, 

183 

Tatliam  v.  Lewis, 

392 

V.  Goulding, 

416 

Tatum 

V.  Tatum, 

269 

V.  Hardman, 

231 

Tayloe 

V.  Mer.  Fire  Ins.  Co., 

83 

V.  Hudson, 

107 

Taylor 

V.  Benham,       .        42, 

136, 

138 

V.  Jackson, 

174, 

176, 

303 

V.  Galloway,    . 

37 

V.  Lee, 

t 

177 

V.  Heriot, 

270 

V.  McDonald, 

317 

V.  James,          .           33,  78 

101 

V.  Morrow, 

233 

V.  Luther,         10,  111, 

339 

344 

V.  Murray, 

233, 

270, 

272 

V.  Manners, 

106 

V.  Newlin, 

335 

V.  Maris, . 

270 

V.  Patton, . 

111 

V.  Meads, 

46 

V.  Thompson 

• 

38 

233 

V.  Moore, 

364 

V.  Todd,     . 

84 

V.  Portington, 

77 

V.  Whitmore, 

. 

169 

V.  Sandil'ord,  . 

107 

Thompsonville  v.  Osgood, . 

168 

V.  Savage, 

269 

Thomson  v.  Ebbets,    . 

206 

V.  Taylor,       33,  101, 

136, 

138, 

V.  Palmer,  . 

269 

184, 

217 

Thorn  v.  Coles,  . 

138 

V.  Titus,  . 

402 

V.  Halsey, 

360 

Adm'r.  v.  Nicolson, 

192 

Thornborough  v.  Baker, 

110, 

111 

Taymon  v.  Mitchell,    . 

177 

Thornton  i'.  Hightower, 

320 

Tazewell  v.  Smith, 

136, 

137 

V.  Knox's  Ex'rs., . 

128 

Teaff  t; 

.  Hewitt,  . 

375 

399 

Thorp  V.  Pettit,  . 

82 

Teas's 

Appeal,    . 

263 

Thorpe  v.  Jackson, 

172 

Tebbetts  v.  Tilden,     . 

33 

Thruston  v.  Minke,     . 

230 

Telfair 

V.  Stead, 

316 

Thurman  v.  Shelton,  . 

302, 

310 

Tenny 

V.  State  Bank, . 

331 

V.  Burt, 

182 

Terrill 

V.  Craig,  . 

302 

Thynne  (Lady)  v.  Earl  of  Gl 

en- 

Teviss' 

Rep.  ('.  Richardson's  H 

eirs, 

48 

gall,                  .         . 

104 

Thayer 

V.  Lane, . 

246, 

335 

Tibbs  V.  Barker, 

86 

V.  Mann, . 

110 

V.  Morris,  . 

111 

Thibaut  v.  Canova,     . 

211 

Tice  V.  Annin,     . 

113 

Thigpe 

n  V.  Price, 

268 

Tidd  V.  Lister,    . 

49, 

263 

Thomas  v.  Doub, 

346 

Tiernan  v.  Beam, 

128 

V.  EUmaker, 

239 

309 

V.  Hinman, 

107 

, 

V.  Grand  Gulf  Bank 

> 

153 

V.  Roland,     81, 

84,  87,  88 

,90, 

V.  Hearn, 

270 

91,  96 

V.  Horn, 

196 

V.  Thurman,  . 

, 

128 

V.  James, 

210 

Tilford  V.  Emerson,     . 

, 

302 

V.  Kelsey, 

110 

Tillett  V.  Charing  Cross 

Bridge, 

77 

V.  McCormack, 

111 

Tillinghast  v.  Champlin 

. 

151 

V.  Phillips,    . 

198 

Tillson  V.  Moulton, 

. 

. 

111 

V.  Rawlings, 

417 

Tilman  v.  Searcy, 

302 

V.  Roberts,    . 

283 

Tilton  V.  Hunter, 

153 

V.  Sheppard, 

183 

V.  Tilton, 

85 

,  86 

168 

V.  Thomas,    . 

261 

281 

Timberlake  v.  Parish, 

94,  95 

V.  Wood, 

136 

Tindall  v.  Childress,  . 

168 

Thomason  v.  Smithson, 

309 

V.  Harkinson, . 

177 

Thoma 

.sson  V.  Kennedy, 

377 

Tingluy  v.  Cutler, 

. 

107 

Thompkins  v.  Hyatt,  . 

87 

Tinsley  v.  Lacy, . 

216 

V.  Mitchell, 

128 

Titus  V.  Mabee,  . 

. 

196 

Thomp 

son  V.  Adams, . 

269 

V.  Neilson, 

233 

V.  Berry,    . 

198 

Tobey  v.  County  of  Bris 

tol, 

77, 

192 

Ixxx 


TABLE    OF    AMERICAN    CASES. 


Tobias  v.  Ketchum, 

. 

94 

Trustees  of  Watertown  v.  C 

3wen, 

364 

Tod  V.  Baylor,    . 

233, 

235 

Tucker  v.  Andrews,    . 

180 

Todd  V.  Campbell, 

. 

111 

V.  Barrow, 

101 

V.  Gee, 

. 

91 

V.  Carpenter,  . 

356 

V.  Moore,    . 

61 

V.  Cheshire,    . 

308 

V.  Taft, 

88 

V.  Keeler, 

114 

Tolson  V.  Tolson, 

* 

364 

V.  Madden, 

168 

Tombs  V.  Rock,  . 

263 

276 

V.  0x1  ey. 

243 

Tomlinson  v.  Claywell, 

309 

V.  Tucker, 

310 

V.  Lindley, 

20 

363 

Tuckley  v.  Thompson, 

125 

V.  Ward,    . 

392 

Tufnell  V.  Constable,  . 

106 

Tompkins  v.  Ward,     . 

. 

338 

Tulk  V 

Moxhay, 

152 

Tone  V.  Brace,    . 

194 

Tully  I 

.  Harloe, . 

110 

Tong  V.  Oliver,   . 

196 

356 

Tully's 

Ex'rs.  V.  Smith, 

183 

Tongue  v.  Morton, 

, 

157 

Tunno 

V.  Trezevant,  . 

243 

TopliflF  t>.  Vail,    . 

243 

Turley 

V.  Young, 

320 

Torill  V.  Skinner, 

, 

111 

Turnb 

nil  V.  Gadsen,   . 

177 

Torrey  v.  Bank  of  Orleans, 

61 

Turner 

V.  Bissell, 

239 

V.  Buck,  . 

179 

V.  Burrows, 

268 

Towle  V.  Mack,   . 

, 

61 

V.  Cameron's  Co., 

114 

V.  Pierce, . 

303 

V.  Clay,    . 

77 

Townend  v.  Toker, 

, 

315 

V,  Crebill, 

157 

Towner  v.  Lane, 

244 

I'.  Dickerson,  . 

19 

Townley  v.  Sherborne, 

58 

V.  Kerr,   . 

111 

Townsend  v.  Auger,   . 

321 

V.  Marriott, 

84 

V.  Houston, 

86 

V.  Navigation  Co., 

177 

V.  Kendall, 

. 

282 

V.  Petigrew,    . 

33 

V.  Smith,    . 

397 

V.  Turner, 

194* 

389 

Townshend  v.  Duncan, 

303 

304 

Turnip 

seed  V.  Cunningham 

; 

111 

V.  Mostyn, 

274 

Turnpike,  &c.  v.  Barnet, 

210 

Tracey  v.  Herrick, 

192 

Co.  V.  Allen, 

226 

Tracy,  Matter  of, 

292 

Tuttle 

V.  Jackson, 

153 

Tradesmans'  Bank  v.  Hyat, 

10 

Twyne's  Case,     . 

151 

Traip  v.  Gould,  . 

20 

309 

Tyler  i 

.  Black,    . 

177 

Trapnall  v.  Byrd's  Adm'r., 

305 

Tyree 

V.  Williams, 

84 

Trask  v.  Donoghue,    . 

37 

Tyrell 

V.  Bank,   . 

184 

Travers  v.  Ross, . 

333 

V.  Morris, 

251 

Travis  v.  Milne,  . 

301 

Tyson 

V.  Watts, 

77,  82 

V.  Waters, 

400 

406 

Trayner  v.  Brooks,      .      ^. 

230 

Uhler  V.  Hutchinson, . 

, 

153 

Tredwell  v.  Brown,    . 

, 

243 

Underbill  v.  Dennis,    . 

, 

282 

Tremper  v.  Barton,     .         33 

,101 

102 

V.  Van  Cortlandt 

403 

Trescott  v.  King, 

110 

Underwood  v.  Brockman, 

182 

189 

V.  Smyth, 

312 

319 

Union 

3ank  v.  Barker, 

. 

i,  33 

Trevor  v.  McKay, 

. 

198 

V.  Buck,   . 

268 

Trotter  v.  Blocker, 

. 

40 

V.  Geary,  . 

21 

363 

V.  Erwin, 

128 

V.  Kerr,     . 

205 

Troup  V.  Haight, 

, 

227 

Unitarian  Soc.  v.  Woodbur 

y,     2 

8,33 

V.  Hurlbut, 

153 

United  States  v.  Duncan, 

270 

272 

V.  Sherwood,    . 

371 

V.  Green, 

280 

Trowbridge  v.  Harlestoa,    . 

272 

V.  Hunter, 

209 

Trucks  V.  Lindsay, 

. 

111 

V.  Keokuk, 

198 

Truebody  v.  Jacobson, 

. 

128 

V,  Monroe, 

168 

Trull  V.  Trull,     . 

, 

62 

V.  Parrott, 

208 

Truly  V.  Wanser, 

198 

V.  Price, 

173 

Trustees  v.  Hossle,     . 

, 

194 

V.  Saline  Bat 

ik,  : 

3 

V.  Wright,     . 

128 

V.  Samperya 

:,    416 

417 

of  Baptist  Association 

V.  Stone, 

18^ 

V.  Smith,   . 

65 

V.  Vaughan, 

53 

of  Huntington  v.  NicoU. 

199 

V.  Wagner, 

2 

314 

TABLE    OF    AMERICAN    CASES, 


Ixxxi 


United  States  Bank  v.  Lee, 

153 

Vick  V.  Troy,  &c.. 

79 

Ins.  Co  V.  Shriver, 

272 

Vidal  V.  Girard's  Ex'rs.,     . 

65,  67 

Upham  V.  Brooks, 

317 

Vilas  r.  Jones,    .         .         .      175,319 

Upshaw  V.  Upshaw,    . 

92 

,  96 

Village  of  Sen.  Falls  v.  Matthew 

s,  356 

Urmey's  Ex'rs.  v.  Woodon, 

65 

,  69 

Villard  v.  Chovin, 

286 

Utica  Ins.  Co.  v.  Lynch,    57, 

308, 

344 

ViUines  v.  Norfleet,     . 
Vizonneau  v.  Pegram, 

61 
46 

Vail  V.  Foster,     . 

268 

Vliet  V.  Lowmason,     .         .      196,  356 

Valentine  v.  Farrington,     . 

268 

Voorhees  v.  Jones, 

239 

V.  Johnson, 

, 

268 

Vose  V.  Philbrook, 

323 

Van  Alst  v.  Hunter,    . 

248 

Voyle  V.  Hughes, 

53,  80 

Van  Amaringe  v.  Ellmaker, 

240 

Vanartsdalen  v.  Vanartsdalen 

J       • 

280 

W V.  B , 

175 

Van  Buren  v.  Olmstead, 

111, 

118 

Wack  V.  Sorber, 

86 

Vanbuskirk  v.  Ins.  Co., 

53 

Wade  V.  Amer.  Col.  Soc,  . 

65 

Van  Cortlandt  v.  Beekman, 

303 

V.  Green, 

269 

V.  Underbill, 

192 

Wager  v.  Chew, 

267 

Vanderhaize  v.  Hugues, 

111 

Waggoner  v.  Speck,   . 

86 

Vanderveer  v.  Stryker, 

335 

Wagstaflfe  v.  Lowerre, 

40 

Van  Doren  v.  Robinson,     . 

81,  86 

Wailes  v.  Cooper, 

162 

Vandoren  v.  Todds,     . 

128 

Wainwright  v.  Read, 

90 

Van  Duyne  v.  Van  Duyne, 

3] 

,  92 

Wakefield  Bank  v.  Truesdale, 

268 

Van  Epps  v.  Van  Dasen,     . 

48, 

281 

Wakeman  v.  Gillespy.         .      196,  356 

Van  Hook  v.  Whitlock, 

337, 

340 

V.  Grover,            .      315,  363 

Vanhorn  v.  Duckworth, 

334 

Wales  V.  Bogue, 

33 

Van  Home  v.  Fonda, 

61 

Walker  v.  Armstrong, 

171 

Van  Houten  v.  1st  Ref.  Dutch  Ch. 

196 

V.  Butz, 

157 

Van  Hbuten's  Case,    . 

280 

V.  Crowder,    . 

287 

Van  Husen  v.  Kanouse, 

110 

Estate,            .      261,  26 

3,  275 

Van  Kruen  t'.  Trenton  Manuf 

Co 

356 

V.  Gilbert,      . 

153 

Vanmeter  v.  McFadden, 

123, 

153 

V.  Gregory,     . 

175 

Vann  v.  Hargett, 

312 

V.  Hall,  . 

31 

Van  Orden  v.  Durham, 

, 

268 

V.  Hallett, 

.     346 

Van  Pelt  v.  McGraw, 

114 

V.  House, 

243 

Van  Reimsdyk  v.  Kane, 

20 

363 

V.  Laflin, 

230 

Vansitttart  o.  Vansittart,    . 

45, 

283 

V.  Robbins,     . 

198 

Van  Valkinburgh  v.  Watson, 

287 

V.  Selfe, 

211 

Vanwinkle  v.  Curtis, 

. 

211 

V.  Shepardson, 

211 

Varick  v.  Smith, 

309 

V.  Shore, 

•      55 

Varnum  v.  Meserve,    . 

121 

V.  Trott, 

243 

Vasser  v.  Vasser, 

78 

111 

V.  Walker, 

103 

Vattier  v.  Hind, 

162 

Wall  V.  Arrington,      .         .        8 

5,  168 

Vauck  V.  Edwards, 

54 

186 

V.  Cloud,    . 

211 

Vaughan  v.  Deloatch, 

252 

V.  Cockerell, 

184 

V.  Vanderstegan, 

46, 

176 

V.  Hill, 

303 

Vaughn  v.  Johnson,    . 

197 

V.  Thompson,     . 

179 

V.  Law, 

, 

211 

Wallace  v.  Coston, 

46 

V.  Tracy, 

. 

153 

V.  Duffield,     . 

33 

Vaux  V.  Parke,   . 

43 

V.  Duncan, 

360 

Veile  V.  Hoag,     . 

268 

V.  McCoUogh, 

.       33 

Venabe  v.  Beauchamp, 

, 

319 

V.  McVey, 

211 

Venable  v,  Coffman,    . 

. 

69 

Waller  v.  Armstead,   . 

180 

Vennum  v.  Davis, 

, 

194 

V.  Taylor, 

310 

Verden  v.  Coleman,    . 

•. 

375 

Wallingsford  v.  Wallingsford, 

45 

Verdier  v.  Verdier, 

275 

Wallis  V.  Freeman, 

.     239 

Vermilye  v.  Christie, 

, 

345 

V.  Long,  . 

.      110 

Verplanck  v.  Gaines, 

335 

V.  Thornton,    . 

.       58 

^              V.  Mer.  Ins.  Co.  of 

Wallwork  v.  Derby,    . 

.     363 

N.Y.,     .         . 

312 

Wallwyn  v.  Lee, 

.     162 

Vick  V.  Mayor  of  Vicksburg, 

. 

230 

Walraven  v.  Lord, 

.       28 

Ixxxii 


TABLE    OF    AMERICAN    CASES. 


Walrond  v.  Walrond, 

78 

Watts  V.  Smith, 

3 

Walsh  V.  Smyth, 

397 

V.  Steele, 

287 

Walsham  v.  Stainton, 

6 

310 

V.  Waddle, 

84 

Walton  V.  Cody, 

121 

Waugh  V.  Carver, 

239 

V.  Walton, 

363 

V.  Mitchell, 

246 

Wambaugh  v.  Bimer, 

177 

Wayland  v.  Tucker,    .     ^ 

268 

Waples  V.  Waples,      .     . 

193 

Weaver  v.  Shyrock,    . 

172 

Ward  V.  Cooke, 

110 

Weaver's  Appeal, 

101 

V.  Grey,     . 

31 

Webb  V.  Bowman's  Ex'rs., 

167 

168 

V.  Hill,       . 

376 

V.  Direc.  London  &  Ports- 

V. Seabry, 

324 

mouth  R.  R.  Co. 

84 

V.  Tyrrell, 

186 

V.  Evans, 

94 

V.  Van  Bokkelen, 

196 

356 

V.  Pell,     . 

20 

416 

Warde  v.  Warde, 

6,  7 

V.  Portland  Manufac 

.Co., 

211 

Warden  v.  Eichbaum, 

290 

V.  Robinson,     . 

48 

Wardlaw  v.  Gray, 

243 

V.  Wools, 

31 

Ware  v.  Richardson,  . 

363 

Weber  v.  Marshall, 

77 

Warfield  v.  Warfield, 

231 

Webster  v.  Maddox,    . 

153 

Waring  v.  Ayres, 

77 

V.  Van  Steenbergl 

h 

151 

V.  Cram, 

246 

356 

V.  Webster,  . 

45 

V.  Suydam,     . 

8 

Weed  V.  Grant,  . 

194 

Warley  v.  Warley, 

263 

275 

V.  Smull, 

226 

337 

Warner  v.  Bates, 

31 

Weir  V.  Tannehill,      . 

31 

V.  Bennett, 

109 

Welch  V.  Beers, 

113 

V.  Conant, 

198 

V.  Knott, 

217 

V.  Daniels, 

20 

177 

Re, 

286 

Warren  v.  Copelin, 

53 

Wellborn  v.  Tiller,      . 

310 

V.  Fenn, 

128 

Welles  V.  March, 

241 

V.  Richmond, 

151 

Wellesly  v.  Wellesly, 

301 

402 

V.  Sproiile,     . 

364 

Wellington  v.  Gale,    . 

114 

V.  Warren, 

272 

344 

V.  Maxwell, 

88 

Warwick  v.  Queen's  CoUeg 

e,      . 

15 

V.  Moore, 

233 

Washburn  v.  Goodman, 

246 

V.  Strange, 

310 

Washington  R.  R.  v.  Alexa 

ndria 

Wells  V.  Houston, 

363 

R.  R.,  . 

61 

V.  McCall, 

44 

V.  Tait,    . 

270 

V.  Millet,   . 

84 

University  v.  ( 

jlreen. 

219 

V.  Morrow, 

129 

Wason  V.  Warering,    . 

188 

V.  River  Raisin  R.  R 

Co.," 

334 

Waterlow  v.  Bacon,    . 

194 

V.  Yates, 

171 

Waterman  v.  Hunt,     . 

243 

Welsh  V.  Bayard, 

86 

Waters  v.  Groom, 

61 

V.  Buckins, 

233 

V.  Howard, 

11,  88,  95 

V.  Usher, 

123 

V.  Lemon, 

191 

Wemple  v.  Stewart,    . 

168 

V.  Mynn, 

176, 

303 

Wendell,  Matter  of,     . 

290 

291 

V.  Riley, 

268 

V.  Van  Rensselaer 

) 

312 

V.  Tazewell,     . 

44 

V.  Wadsworth, 

153 

V.  Thorn, 

61 

Wentworth  v.  Lloyd, 

7 

V.  Travis, 

'87,  91 

Wesley  v.  Thomas, 

168 

Watkins  v-.  Collins,     . 

174 

West  V.  Bank  of  Rutland, 

257 

Watney  v.  Wells, 

243 

V.  Beanes, 

175 

Watson  V.  Bagaley,     . 

31 

V.  Belches, 

268 

V.  Bothwell,  . 

248 

V.  Flanigan, 

363 

V.  Cox, 

310 

V.Hall,      . 

346 

V.  Godwin,     . 

363 

Midland  R.  R.  Oompt 

my  V. 

V.  Hunter, 

208 

Nixon, 

315 

V.  Mahan, 

86 

V.  Patton, 

168 

V.  Wells, 

128, 

157 

V.  Randall, 

312 

Watt  V.  Watt,     . 

113 

V.  Rouse,   . 

196 

Watts  V.  Gayle, 

316, 

319 

V.  Walker, 

210 

V.  Girdlestone, 

57 

V.  Williams, 

344 

JABLE    OF     AMERICAN    CASES. 


Ixxxiii 


Westbrook  v.  Comstock,     . 

281 

Whitehead  v.  Brown, 

168 

V.  Harbeson, 

85 

Whitehorn  v.  Hines,  . 

.      183, 

184 

Westerman  v.  Means, 

88 

Whitehurst  v.  Harker, 

. 

30 

Western  Ins.  Co.  v.  Eagle  Fire 

Whitenack,  Matter  of. 

292 

Ins.  Co.            .... 

335 

Whitesides  v.  Cannon, 

46 

Western  v.  McDermott, 

152 

V.  Darris, . 

48 

Reserve  Bank  v.  Stryker,  347 

V.  Greenlee, 

.'        84, 

183 

R.  R.  Corporation  v. 

Whitewater  &c.  Co.  v.  C 

omegys. 

205 

Babcock,  . 

84,  85 

Whiting  V.  Bank  U.  S., 

416 

Stage  Co.  V.  Walker, 

241 

V.  Barney, 

6 

Westervelt  v.  HofiF,      . 

157 

V.  Beebe, 

363 

West  Jersey  R.  R.  v.  Thomas,  192,  196, 

V.  Gould, 

33 

356 

Whitman  v.  Lex, 

65 

Weston  V.  Foster, 

230 

V.  Robinson, 

354 

Wetmore  v.  Scovill, 

214 

Whitmore  v.  Turquand, 

31 

Wetzel  V.  Sponsler's  Ex'trs., 

268 

Whitney  i;.  French,     . 

111,  114 

241 

Weyer  v.  Tbornburg, 

243 

V.  Mayo, 

.      312, 

320 

Wharl  V.  Howell, 

111 

V.  Robbins,    . 

344 

Wheat  V.  Moss, 

356 

V.  Whitney,  . 

310 

Wheatley  v.  Calhoun, 

233 

Whitridge  v.  Durkee, 

268 

Wheeland  v.  Swartz,  . 

111 

V.  Parkhurst, 

77,  96 

Wheeler  v.  Bates, 

117 

Whittick  V.  Kane, 

111 

V.  Clinton  Can.  Bank, 

310 

Whitton  V.  Smith, 

242 

V.  Smith, 

65 

V.  Whitton,   . 

230 

Wheelden  v.  Lowell, 

177 

Whitworth  v.  Whyddon, 

353 

Whelan  v.  Whelan,     . 

183 

Whyte  V.  Arthur, 

402 

Wheling  v.  Eichelberger,    . 

111 

Wickam  v.  Gattrell,    . 

175 

Whilden  v.  Whilden, 

94 

Wickman  v.  Robinson, 

128 

Whillock  V.  Hale, 

230 

Wierich  v.  De  Zoya,   . 

197 

Whipple  V.  Barnes,     . 

110 

Wikoff  V.  Davis, . 

270 

V.  Dow, 

287 

Wilbanks  v.  Duncan, . 

379 

V.  McClure,  . 

183 

Wilcox  V.  Davis, 

303 

V.  Van  Rennsselaer, 

364 

V.  Mills,  . 

310 

Whitbread  v.  Smith,  . 

173 

V.  Wilkinson,. 

397 

White  V.  Banks,          .         .      26 

7,  269 

V.  Wileox, 

.      263, 

275 

V.  Booth, 

211 

Wild  t).  Gladstone, 

341 

V.  Brown, 

118 

Wilde  V.  Fox, 

86 

V.  Bullock, 

402 

V.  Jenkins, 

227 

V.  Buloid,          .          17,  1 

8,  402 

Wilder  v.  Keeler, 

243,  247, 

252 

V.  Cox, 

.     179 

Wilderman  v.  Baltimore, 

65 

V.  Crew, 

363 

Wilhelm  v.  Folmer,    . 

33 

t).  Dingley, 

107 

V.  Lee, 

117 

V.  Dougherty,  • 

243 

V.  Wilhelm, 

231 

V.  Fisk,     . 

65,  69 

Wilkes  V.  Henry, 

342 

V.  Forbes, 

.     211 

V.  Rogers, 

287 

V.  Hall,     . 

310 

Wilkin  V.  Wilkin, 

.      230, 

309 

V.  Hampton, 

21 

Wilkins  v.  French, 

114 

V.  Morrison, 

347 

V.  Sears, 

113 

V.  Parker, 

285 

V.  Taylor, 

136 

V.  Parrish, 

243 

Wilkinson  v.  Fowkes, 

183,  191 

415 

V.  Port  Huron  Co.,  . 

168 

V.  Wilkinson, 

81 

V.  Thompson,   . 

79 

Willdey  v.  Webster,    . 

363 

V.  Trotter, 

191 

Willenborg  v.  Murphy, 

363 

V.  Turner, 

319 

Williams  v.  Ayrault,  . 

198 

V.  Whitney, 

.     114 

V.  Beard, 

!      114 

364 

V.  Wiggins, 

222 

V.  Berry, 

.      196 

356 

V.  Williams, 

.     128 

V.  Brown,     . 

153 

V.  Yaw,     . 

304 

V.  Chard, 

407 

White's  Trusts,  . 

30 

V.  Cox, 

.      233, 

454 

Whitebread  v.  Bennett, 

.     138 

V.  Craig, 

270 

Ixxxiv 


TABLE    OF    AMERICAN    CASES. 


Williams  v.  Fitch, 

6 

V.  Hall, 

196 

356 

V.  Harden,    . 

20 

■V.  Harrington, 

285 

V  Helme, 

270 

V.  Hodgson, 

240 

V.  Hubbard, 

335 

■V.  Jenkins,  . 

354 

355 

V.  Lambe,    . 

162 

V.  Lockwood, 

198 

V.  Martland, 

364 

V.  Mears, 

101 

V.  Meeker,    . 

109 

V.  Morten,    . 

251 

V.  Otey, 

156 

V.  Page, 

. 

314 

V.  Philpot,   . 

363 

V.  Powell,     . 

184 

V.  Presb.  Soc,  303,  306,  335 
V.  Roberts,  .  .  128,  198 
V. Savage  Manuf.  Co.,  16,  227, 
228,  346 


V.  Sexton,    . 

306 

V.  Stratton, . 

, 

123 

V.  Townsend, 

. 

114 

t).  Warren,  . 

192 

V.  Washington 
V.  Weel, 

)    • 

272 
310 

V.  Wiggand, 
V.  Williams, 

16,  29 

.     230 
,  65,  360 

V.  Young,     . 

128 

Williams'  Case,  . 

285,  286 

Williamson  v.  Branch  Bank, 

251 

V.  Brown, 

151 

V.  Williamson, 

103 

V.  Wilson, 

241, 

243,  246 

Willing  V.  Peters, 

136,  137 

AVillis  V.  Greenhill,     . 

151 

V.  Henderson,   . 

363 

V.  Willis,  , 

292 

Wilson  V.  Allen, 

364 

V.  Arney, 

V.  City  Bank, . 

V.  Coles, 

• 

95 
323 
139 

V.  Drumrite,    . 

. 

110 

V.  Hamilton,   . 

.     312 

V.  Hart,  . 

, 

152 

V.  Mace, 

19 

6,  356 

V.  Mallett, 

220, 

22 

1,  222 

Matter  of. 

285 

V.  Miller, 

157 

V.  Russell, 

. 

110 

V.  Shoenberger, 
V.  Stolley, 
V.  Towle, 

111 
.     308 
.     363 

V.  Troup, 
V.  Wilson, 

110, 

11 

3,  121 
45 

Wilt  D.Franklin, 

.       37 

Wilton  V.  Harwood,    . 

,       86 

V.  Hill,    . 

. 

.       45 

Winborn  v.  Gorrell,    . 
Winch  V.  Birkenhead,  &c., 

Co.,  ... 

Winchester  v.  Winchester 
Wing  V.  Cooper, 
Wingart  v.  Fry,  . 
Wingate  v.  Dail, 

V.  Haywood, . 
Wingfield  v.  Crenshaw, 
Winn  V.  Albert, 

V.  Elliott, 
Winne  v.  Reynolds,    . 
Winnipiseogee  Lake  Qo.v.  Wors 

ter, 
Winnipiseogee  Lake  Comp 

Young,    . 
Winship  v.  Pitts, 
Winslow  V.  Chiffelle,  . 
Winter  v.  Gerol, 
Wintermute  v.  Snyder, 
Winters  v.  Henderson, 
Wise  V.  Lamb,    . 
Wiselay  v.  Findlay,     . 
Wiser  v.  Blackly, 
Wisner  v.  Barnet, 
Wiswall  V.  McGowan, 
Withers  v.  Yeadon,     . 
Witman  v.  Lex,  . 
Witmore  v.  White, 
Witter  V.  Richards,     , 
Woddrop  V.  Price, 
Wolbert  v.  Harris, 
Wolcott  V.  Melick, 
Wolf  V.  Corby,    , 
V.  Wolf,      . 
Wollaston  v.  King, 
WoUstonecraft,  Matter  of, 
Womble  v.  Battle, 
Wood  V.  Barringer,     . 

V.  Burnhara, 

V.  Chapin, 

V.  Clute,    . 

V.  Cone,    . 

V.  Gault,    . 

V.  Majoribanks, 

V.  Patterson, 

V.  Shepherd, 

V.  Sutcliffe, 
Woodbury  Savings  Bank 

surance  Company,  . 
Woodcock  v.  Bennett, 
Woodtolk  V.  Blount,    . 
Woodgate  v.  Fleet,     . 
Woodruff  V.  Depue,     . 
Woodrum  v.  Kirkpatrick, 
Woods  V.  Bailey, 
V.  Farmere, 
V.  Hildebrand, 
V.  Morrell, 
V.  Wallace, 


157,  162 
R.  R. 

212 

417 

111 

84 

86 

198 

211 

412 

233 

84 


363 


210,  302 
any  v. 

309 
208 
246 

61 
168 
270 
376 
230 
16,  399 
303 

90 

30 

69 

86 
243 
243 
243 
211 

33 
334 

94 
280 
128 
302 

40 
151 
230 

33 
241 

84 

356 

192 

211 

In- 

171 

78,  305,  379 

151 

33 

270 

45,  399 

128 


37, 


10,  306 


153 
114 
344 
111 


TABLE    OF    AMERICAN    CASES, 


Ixxxv 


Woods  V.  Woods,  ...  94 
Woodson  V.  Palmer,  .  .  .  392 
Woodward  v.  Schatzell,  .  .  360 
V.  Wood,  .  .  314,  315 
Woodworth  v.  Rogers,  356 

r.  Wilson,  .     317 

Wooldridge  v.  Wilkins,       .         .     246 
WooUam  v.  Hearne,     33,  85,  111,  168, 

172 

V.  Ratcliflfe,  .         .         .217 

Woolsey  v.  Judd,         .         .         .214 

Woolstencroft  v.  Woolstencroft,     264 

Wootten  V.  Burch,       .  8,  308,  344 

V.  Copeland, .         .         .230 

Work  I'.  Harper,  .         .         .153 

Works  I'.  Junct.  R.  R.,         .         .     208 

Wormack  v.  Rogers,   .         .         .174 

Wormley  v.  Wormley,         .         .     156 

Worth  V.  McAden,       ...       37 

Worthington  v.  Lee,  .         .      317,  333 

Worthy  v.  Johnson,    .         .         .     310 

Wragg's  Rep.  v.  Comp.  Gen.,      .     128 

Wright  V.  Arnold,  .184 

V.  Austin,        .         .         .268 

V.  Brown,         ...       46 

V.  Crump,        .         .         .268 

V.  Cumsty,       .         .         .239 

V.  Dame,  .         .      128,  303 

V.  Delafield,    .         .         .168 

V.  Douglas,      ...       28 

V.  Grist,  .         .         .     356 

V.  Holbrook,  .         .         .261 

V.  Linn,  ....       67 

t'.  Lukes,         .         .         .351 

V.  Marsh,  .         .         .     230 

V.  Meek, .         .  .408 

V.  Snowe,        .         .         .     176 

V.  Tatham,      ...       25 

V.  Trustees  Meth.  Epis. 

Church,  .         .      139,  277 

V.  Vanderplank,      .         .     184 

V.  Vernon,       .         .         .     413 

V.  Wilson,       .         .        79,  174 

V.  Wright,       .         .      311,  364 

V.  Young,        ...       90 

Wrigley  v.  Swainson,  .         .     180 

Wyatt  V.  Elam,  .         .         .         .153 

Wyche  v.  Green,  ...       79 

Wyckofff.  Sniffen,     ...       10 


Wylder  v.  Crane, 
Wyllie  V.  Ellice, . 
Wynn  v.  Wilson, 
Wynne  v.  Tunstall, 
Wyse  V.  Smith,  . 
Wythe  V.  Hennicker, 

Yale  V.  Dederer, 
Yancey  v.  Mauck, 
Yancy  v.  Fenwick, 

V.  Green,  . 
Yard  v.  Patton,  . 
Yaryan  v.  Shriner, 
Yates  V.  Donaldson, 
V.  Monroe, 
V.  Tisdale, 
Yeates  v.  Pryor, 
Yeatman  v.  Wood, 
Yeomans  v.  Williams 
Yonge  V.  Reynell, 

V.  Shepard, 
Yordon  v.  Hess,  . 
York  V.  Gregg,    . 
Young  V.  Bampass, 

V,  Bilderback, 

V.  Coleman, 

V.  Colt,    . 

Ex  parte, 

V.  Frost,  . 

V.  Keogh, 

V.  Lyons, 

V.  Pate,    . 

V.  Rathbone, 

V.  Wright, 

V.  Young, 
Youngman  v.  Elmira  R 


R. 


Zabriskie  v.  The  Jersey  C 
R.Co., 
V.  Vreeland, 
Zeigler  v.  Eckert, 
V.  Long, . 
Zeisweiss  v.  James, 
Zeiter  v.  Bowman, 

V.  Zeiter,  . 
Zentmyer  v.  Mittower, 
Zinc  Co.  V.  Franklenite  Co 
Zuleuta  V.  Vinent, 


.  363 

.  281 

,  198 

.  231 

.  261 

.  275 

.  46 
.  128 
.  303 
.  85 
.  269 
.  128 
.  269 
.  314 
.  203 
.  177 
.  246 
.  106 

267,  268 

.  356 

6 

.  177 

.  179 

.  315 

.  309 

9 

.  268 

90,  232 

.  285 

269,  319 
.  312 
.  84 
.  84 
.   45 

117,  315 

ty  R. 

211 

196 

106 

U70 

70 

157 

106 

128 

208,  397 

.  356 


THE 


DOCTRINE  OF  EQUITY 


INTRODUCTION. 


The  subject  of  the  present  Treatise  is  the  prerogative 
jurisdiction  of  the  Great  Seal  for  giving  effect  to  certain 
civil  rights,  technically  called  Equities,  where  the  ordi- 
nary process  of  law  is  inadequate. 

By  the  original  system  of  English  jurisprudence  as  ex- 
plained by  Lord  Chief  Justice  Hale,  the  whole  judicial 
authority  of  the  Crown  was  exercised  by  the  King  in 
person,  sitting  in  his  Royal  Court,  called  the  Aula  or 
Curia  Regis.  Portions  of  this  authority  were  afterwards 
delegated  to  the  courts  of  law ;  and  where  an  injury  had 
been  committed,  which  the  authority  of  those  courts  was 
adequate  to  redress,  a  writ  under  the  Great  Seal  was 
issued  out  of  chancery,  called  an  original  writ,  directed 
to  the  sheriff  of  the  county  where  the  injury  was  alleged 
to  have  been  committed,  containing  a  summary  statement 
of  the  cause  of  complaint,  and  requiring  him  to  bring  the 
wrongdoer  before  the  proper  court  of  law,  there  to  answer 
the  plaintiff's  charge.  The  use  of  original  writs  in  per- 
sonal actions  is  now  abolished.  But  such  a  writ  was 
1 


A  ADAMS  S    DOCTRINE    OF    EQUITY. 

formerly  essential  to  the  institution  of  any  action  in  the 
superior  court  of  law,  and  in  real  and  mixed  actions  it  is 
still  necessary.  The  portion  of  the  royal  authority  which 
was  not  thus  delegated  to  the  courts  of  law  appears  to 
have  remained  in  the  Sovereign  as  a  branch  of  the  pre- 
rogative, and  to  have  been  naturally  intrusted  to  the  Lord 
Chancellor  as  the  minister  in  whose  custody  the  Great 

Seal  was  placed.'     The  *manner  of  its  exercise 
r  xxxT 
L         -■  was  by  another  writ,  also  issuing  under  the  Great 

Seal,  called  the  writ  of  subpoena,  which  was  directed  to 
the  defendant  personally,  and  commanded  him  under  a 
penalty  to  appear  to  answer  such  things  as  were  alleged 
against  him,  and  to  abide  by  the  decree  which  should  be 
made.  The  principle  by  which  its  exercise  was  regulated 
appears  to  have  been  the  one  above  stated,  viz.,  that  of 
affording  an  effectual  remedy,  where  the  remedy  at  com- 
mon law  was  imperfect,  but  not,  as  has  been  sometimes 
erroneously  supposed,  that  of  creating  a  right  which  the 
common  law  had  denied. 

The  existence  of  this  prerogative  or  equitable  jurisdic- 
tion seems  to  be  in  a  great  decree  peculiar  to  this  country, 
and  to  pervade  the  whole  system  of  its  judicial  polity.^ 
The  Court  of  Exchequer,  established  for  enforcing  pay- 
ment of  debts  and  duties  to  the  King,  and  incidentally 
administering  justice  to  the  debtors  and  accountants  to 
the  Crown,  was,  until  the  recent  abolition  by  statute  of 
its  equitable  jurisdiction,  subdivided  into  a  court  of  equity, 
and  a  court  of  common  law ;  and  there  are  also  several 
inferior  courts  of  equity,  which  exercise  exclusive  juris- 
diction over  matters  within  their  cognisance,  having  their 

^  Hale's  Jurisdiction  of  H.  L. ;  King  v.  Hare,  1  Str.  150  ;  1  Story  on  Eq., 
8.  41-49  ;  3  Steph.  Black.  407 ;  Steph.  on  Plead.  5. 
•■'  Mitf.  6,  50,  151. 


INTRODUCTION.  6 

own  peculiar  courts  of  appeal,  and  without  any  appellate 
jurisdiction  in  the  Court  of  Chancery.  If,  however,  a 
suit  be  commenced  in  those  courts,  where  the  cause  of 
suit  is  without  their  jurisdiction,  or  where  by  reason  of 
the  limited  jurisdiction  of  the  court  the  defendant  cannot 
have  complete  justice,  the  defendant,  before  decision  of 
the  suit,  may  file  a  bill  in  the  High  Court  of  Chancery, 
showing  the  incompetency  of  the  inferior  court,  and  pray- 
ing a  special  writ  of  certiorari  to  remove  the  cause  into 
the  Court  of  Chancery.  The  principal  inferior  jurisdic- 
tions in  England  which  have  cognisance  of  equitable  cases, 
are  those  of  the  counties  Palatine  of  Lancaster  and  Dur- 
ham, the  Courts  of  the  two  Universities  of  Oxford  and 
Cambridge,  the  Courts  of  the  City  of  JiOndon,  and  the 
Cinque  Ports.  The  County  Palatine  of  Chester,  and  the 
Principality  of  Wales,  had  also,  formerly,  courts  of  equit- 
able jurisdiction,  but  these  courts  are  now  abolished.^ 

The  earliest  instances  which  have  been  hitherto  pub- 
lished of  the  exercise  *of  the  prerogative  juris-  r-^  .-, 
diction  of  the  Great  Seal,  are  found  in  a  series 
of  Chancery  records  commencing  with  the  reign  of  Richard 
2,  and  ending  with  that  of  Elizabeth,  which  was  published 
in  1827,  1830,  and  1832,  by  the  Record  Commissioners.'^ 

Some  of  the  petitions  contained  in  this  collection  ap- 
pear to  have  been  merely  presented  to  the  Chancellor,  as 
the  official  framer  of  ordinary  writs,  to  obtain  a  suitable 
one  for  the  plaintiff's  case  ;  others,  especially  during  the 
reigns  of  Edward  4,  Henry  6,  and  Henry  8,  are  for  a  writ 
in  the  nature  of  a  habeas  corpus  to  have  the  complainant 

^  Mitf.  on  Pleading  6,  50,  151;  1  Daniel's  Chancery  Practice  509;  1 
Maddock's  Chancery  Practice  249  ;  I  Equity  Draftsman  131  ;  5  Vict,  c.5; 
11  Geo.  4  &  1  Wm.  4  c.  70,  s.  14. 

*  Calendar  of  Chancery  Proceedings,  vols.  1,  2  and  3. 


4  ADAMS's    DOCTRINE    OF    EQUITY. 

released  from  an  illegal  imprisonment;  but  in  the  majority 
of  instances  they  appeal  to  the  prerogative  jurisdiction  of 
the  Chancellor,  and  pray,  not  that  the  wrong  complained 
of  may  be  remedied  at  law,  but  that  the  Chancellor  will 
examine  the  parties,  and  give  appropriate  redress. 
I  In  many  cases  a  special  ground  is  alleged  for  calling 
on  the  Chancellor  to  exercise  a  jurisdiction,  which  would 
Qaturally  fall  within  the  province  of  the  common  law 
Courts.    One  of  the  grounds  so  alleged,  and  which  strongly 


marks  the  character  of  the  age,  is  the  difficulty  of  obtain- 
ing justice  by  reason  of  the  wealth  and  power  of  the 
wrongdoer.  Thus  in  one  case,  it  is  said  that  the  plaintiff 
cannot  have  any  remedy  at  law  in  consequence  of  the  de- 
fendant being  surrounded  by  many  men  of  his  mainte- 
nance. In  another,  that  the  defendant  is  strong  and 
abounding  in  riches,  and  a  great  maintainor  of  quarrels, 
and  the  complainant  is  poor,  and  hath  not  the  means  to 
sue  for  remedy  at  the  common  law.  In  a  third,  the  relief 
is  prayed,  ^'because  your  petitioners,  John  and  Catherine, 
re  so  poor,  and  the  said  John  so  ill,  that  they  cannot  pur- 
ue  the  common  law."  Of  this  sort  of  jurisdiction  there 
are  many  instances,  but  in  one  case,  towards  the  end  of 
Henry  the  Eighth's  reign,  the  prayer  is,  that  the  peti- 
tioner, who  had  been  restrained  by  injunction  from  pro- 
ceeding at  law,  "  may  be  relieved  from  the  prohibition, 
because  he  is  a  poor  man,  and  unable  to  sue  in  the  King's 
Court  of  Chancery."^ 

The  jurisdiction  exercised  on  the  ground  of  poverty  or 
overbearing  power  has  necessarily  died  with  the  state  of 
society  in  which  it  originated ;  but  it  appears,  like  the 

^  Goddard  v.  Ingepenne,  1  Chan.  Cal.  viii. ;  Thomas  v.  Wyse,  Id.  xiv. ; 
Bell  V.  Savage,  Id.  xir. ;  Royal  v.  Garter,  Id.  cxxx. 


INTRODUCTION.  5 

present  jurisdiction  of  *the  Court,  to  have  been  p^  ..-, 
based  on  the  principle  of  giving  an  efficacious 
remedy  for  a  right  existing  at  law,  and  many  instances 
occur  in  the  records  where  the  ordinary  doctrines  of 
modern  equity  are  brought  forward  as  the  grounds  for 
relief.  The  most  frequent  of  these  equities,  especially 
in  the  latter  years  of  Henry  6,  and  in  the  subsequent 
reigns,  is  for  enforcing  conveyances  by  feoffees  in  trust ; 
but  many  other  ordinary  equities  occur.  Thus,  for  ex- 
ample, we  find  a  bill  seeking  to  set  aside  a  conveyance 
which  the  defendant  had  obtained  by  intoxicating  the 
plaintiff;^  a  bill  by  a  tithe-owner  to  obtain  payment  for 
his  tithes  f  a  bill  stating  that  the  plaintiff  had  recovered 
her  land  at  law,  but  that  the  defendant  continued  vexa- 
tiously  to  harass  her  and  seeking  to  have  him  restrained;^ 
a  bill  by  an  executor,  stating  that  the  defendant  had  by 
a  trick  obtained  from  him  a  general  release,  when  he  was 
ignorant  of  a  debt  due  from  the  defendant  to  his  testator, 
and  intended  the  release  to  apply  to  other  matters,  and 
praying  an  injunction  against  setting  it  up  at  law  as  a 
discharge  of  that  debt;*  a  bill  against  an  executor  for 
payment  of  his  testator's  debt  f  a  bill  to  perpetuate  tes- 
timony;^ a  bill  for  discovery  of  title  deeds  ;^  and  a  bill 
for  specific  performance  of  a  contract.' 

It  must  not,  however,  be  supposed  that  in  all  the  peti- 
tions to  the  Chancellor  contained  in  these  records  the 

*  Stonehouse  v.  Stanshaw,  1  Ch.  Cal.  xxix. 
'  Arkenden  p.  Starkey,  Id.  xxxv. 

^  Freeman  p.  Pontrell,  Id.  xlii. 

*  CobbethofB  c.  Williams,  Id.  H. 

'  Vavasour  c.  Chadwick,  Id.  xciii. 
«  Earl  of  Oxford  v.  Tyrrell,  Id.  cxx. 
'  Baker  r.  Parson,  2  Chan.  Cal.  1. 

*  Tyngelden  r.  Warham,  Id.  liv. 


6  ADAMs's    DOCTRINE    OF    EQUITY. 

principles  of  modern  equity  were  rigorously  observed; 
or  even  that  it  was  the  uniform  practice  to  set  out  any 
special  ground  for  interference.  In  many  instances  the 
doctrines  of  equity,  may  be  traced ;  but  there  are  many 
others,  where  the  complaints  made  are  merely  of  violent 
assaults,  or  of  other  wrongs  which  might  apparently  have 
been  redressed  at  law.  And  we  sometimes  find  the  juris- 
diction resisted  on  that  ground.  Thus,  for  example,  in 
one  of  the  cases  already  referred  to,  the  bill,  after  men- 
tioning the  subtraction  of  the  plaintiff's  tithes,  complains 
also  that  the  defendant  had  violently  driven  away  his 
sheep,  and  the  defendant,  after  answering  to  the  former 
rsc  -"-i  charge,  says  with  reference  *to  the  latter,  "that 
the  same  is  determined  at  the  common  law ; 
Wherefore  he  understands  not,  that  the  King's  Court  0/ 
his  Chancery  in  this  case  will  have  knowledge ;  neverthe- 
less, for  declaration  of  the  matter  to  you,  my  Lord  Chan- 
cellor, the  defendant  saith  that  he  never  took  nor  drove 
away  any  sheep  of  the  said  complainant."  And  in  a  sub- 
sequent case  we  find  the  defendant  alleging  that  some  of 
the  matter  contained  in  the  bill  is,  "  matter  triable  at  the 
common  law,  by  action  of  trespass  or  false  imprisonment, 
the  which  matter  ought  not  by  the  King's  law  of  this  land, 
to  be  determined  in  this  Court :"  and  that  other  matters 
in  the  bill  alleged  are,  in  like  manner  determinable  at  the 
common  law,  by  assize  of  novel  disseisin,  and  by  writ  of 
dower  :  "  nevertheless,"  he  goes  on  to  say,  "  for  the  truth 
and  plainness  of  the  matter,  he  denies  having  done  the 
acts  complained  of."^ 

Whether  this  last  class  of  cases  were  ever  properly 
within  the  jurisdiction  of  the  Chancellor  may  admit  of 
some  doubt.     That  they  are  not  so  now  is  unquestionable ; 

^  Arkenden  v.  Starkey,  1  Ch.  Cal.  xxxv. ;  Harry  v.  Lyngeyn,  Id.  xlix. 


INTRODUCTION.  '  7 

and,  from  the  earliest  time  when  such  jurisdiction  was 
claimed,  down  to  the  time  of  its  final  abandonment,  we 
find  a  perpetual  struggle  going  on  against  its  authority.^ 

The  first  instance  of  this  opposition  occurs  in  the  13th 
year  of  Richard  2  (A.  D.  1389),  when  the  Commons  pe- 
titioned that  no  man  might  be  brought  before  the  Chan- 
cellor or  the  King's  Council  for  matters  remedial  at  the 
common  law.  But  the  only  answer  given  by  the  King 
was,  that  "he  would  keep  his  regality  as  his  predecessors 
had  done  before  him."^  In  four  years  afterwards  (A.  D. 
1393—4),  on  a  second  petition  being  presented  to  the  same 
effect,  a  partial  remedy  was  granting  by  a  statute,  which 
authorized  the  Chancellor  to  give  costs  to  the  defendant, 
where  writs  of  subpoena  should  have  been  obtained  on 
untrue  suggestions.^  In  the  first  year  of  Henry  4  (A.D. 
1399),  a  similar  petition  was  again  presented,  and  the  King 
answered  that  "  the  statutes  should  be  kept  except  where 
one  party  was  so  great  and  rich,  and  the  other  so  poor, 
that  he  could  not  otherwise  have  remedy."*  In  the  fourth 
*year  of  the  same  reign  (A.  D.  1402),  the  Com- 1-^  .  -, 
mons  again  made  the  usual  complaint,  alleging 
that,  according  to  the  Statutes  of  Edw.  3,  no  man  ought 
to  be  imprisoned  or  put  out  of  his  freehold  except  by  the 
processes  of  common  law.  The  King,  however,  in  this 
instance  distinctly  asserted  his  own  jurisdiction;  and  his 
answer  was,  that  "he  would  desire  his  officers  to  abstain 
more  from  sending  for  his  subjects  than  they  had  hitherto 
done  ;  but  that  it  was  not  his  intention  that  they  should 
refrain  from  so  doing  in  reasonable  causes,  as  had  been 

^  Rotuli  Parliamentorum  ut  et  Petitiones  et  Placita  in  Parliamento,  vol. 
iii.  1377-1411 ;  vol.  iv.  1413-1436. 

^  Rot.  Pari.  266.  »  Ibid.  323.  •*  Ibid.  446. 


8  ADAMS's    DOCTRINE    OF    EQUITY. 

done  by  his  good  progenitors."^  This  answer,  however, 
was  far  from  giving  satisfaction  to  the  Commons;  and, 
in  the  third  and  ninth  years  of  his  successor  (A.D.  1451 
and  1421),  we  find- them  speaking  in  very  angry  terms  of 
the  writ  of  subpoena,  and  alleging  that  such  writs  were 
never  granted  or  used  before  the  time  of  the  late  King 
Richard,  "when  John  de  Waltham,  of  his  subtlety,  first 
found  out  the  novelty,  contrary  to  the  form  of  the  com- 
mon law  of  the  realm."^  The  King  still  refused  to  abolish 
the  writ;  but,  from  an  inspection  of  the  records  already 
referred  to,  it  is  apparent  that  the  instances  of  interfer- 
ence with  the  common  law  were  at  this  time  gradually 
decreasing.  The  last  petitions  which  we  meet  with  on 
this  subject  were  presented  in  the  reign  of  Henry  6,  and 
were  couched  in  the  usual  terms,  praying  that  the  writ  of 
subpoena  might  not  issue  for  matters  determinable  at  the 
common  law;  but  the  only  answer  given  was  a  direction 
that  "the  statutes  which  already  existed  should  be  ob- 
served, and  that  no  writ  of  subpoena  should  be  granted 
unless  the  plaintiff  gave  proper  security  for  costs." 

This  is  the  last  time  we  meet  with  any  petitions  hostile 
to  the  jurisdiction,  and  from  the  tenor  of  all  the  remon- 
strances made,  as  well  as  from  that  of  the  bills  which 
appeared  in  the  calendar,  it  seems  obvious  that  the  ac- 
knowledged jurisdiction  of  Chancery  was  in  cases  where 
the  common  law  gave  or  admitted  a  right,  but  which  were 
irremediable  by  its  process.  We  do  not  find  either  in  the 
remonstrances  or  in  the  bills  any  trace  of  a  jurisdiction 
to  give  relief,  on  the  ground  that  the  strict  law  had  denied 
a  right  which,  in  the  Chancellor's  view  of  justice,  ought  to 
have  been  admitted. 

If  such  an  authority  had  ever  been  claimed,  the  com- 
1  3  Rot.  Pari.  506.  =»  4  Ibid.  84,  156 


INTRODUCTION.  •  y 

plaints  of  the  Commons  would  surely  have  been,  not  that 
decisions  were  made  by  an  ^irregular  authority,   p^j.  -i 

and  under  an  irregular  process,  but  that  when 
made  they  were  contrary  to  law.  This,  however,  is  not 
the  case;  but  the  only  objection  made  is,  that  whereas 
certain  matters  ought  to  be  decided  by  a  Court  of  law, 
they  were  decided  by  the  Chancellor,  and  the  very  pledge 
which  was  in  one  instance  given  that  the  Chancery  should 
not  interfere  in  matters  of  common  law,  "  unless  where 
one  party  is  so  rich  and  the  other  so  poor  that  justice 
cannot  otherwise  be  obtained,"  clearly  points  to  a  class  of 
cases  in  which  a  right  existed  according  to  law,  but  in 
which,  for  some  reason  or  other,  the  common  law  remedy 
was  ineffectual. 

The  same  principle  still  governs  the  jurisprudence  of 
the  Court.  It  does  not  create  rights  which  the  common 
law  denies ;  but  it  gives  effectual  redress  for  the  infringe- 
ment of  existing  rights,  where,  by  reason  of  the  special 
circumstances  of  the  case,  the  redress  at  law  would  be 
inadequate. 

The  manner  of  redress  at  law  is  by  a  judgment  for  the 
plaintiff,  entitling  him  to  recover,  as  the  case  may  be, 
either  possession  of  his  property  or  damages  for  its  de- 
tention or  injury,  followed  by  a  writ  of  execution  to  the 
sheriff,  requiring  him  to  give  effect  to  the  judgment  ob- 
tained. If  this  redress  be  sufficient  there  is  no  jurisdic- 
tion in  equity ;  and,  in  accordance  with  this  principle,  it 
is  held  that  the  Court  of  Chancery  cannot  assess  damages, 
or  decree  possession  of  land  or  payment  of  rent  under  a 
legal  title ;  for  in  the  one  case  the  assessment  may  be 
made  by  a  jury,  in  the  other  the  possession  may  be  ob- 
tained by  ejectment,  and  the  intermediate  rent  may  be 
recovered  either  by  assumpsit  for  use  and  occupation  or 


10  ADAMS's    DOCTRINE    OF    EQUITY. 

by  trespass  for  mesne  profits.  The  manner  of  redress  in 
Chancery  is  by  a  decree  against  the  wrongdoer,  compell- 
ing him  specifically  to  make  good  his  default ;  and  there- 
fore if  the  wrong  require  specific  redress,  and  such  specific 
redress  is  not  attainable  at  law,  there  is  a  prerogative 
jurisdiction  in  equity  to  relieve.  And  whether  specific 
redress  be  requisite  or  not,  the  inability  of  the  common 
law  Courts  to  examine  the  defendant  creates,  in  all  cases 
of  civil  wrong,  a  jurisdiction  in  equity  to  that  extent. 

The  jurisdiction,  however,  is  confined  to  civil  suits,  and 
cannot  be  extended  to  the  trial  of  crime.  It  is  the  right 
of  every  man,  when  charged  as  a  criminal,  to  be  exempt 
from  giving  evidence  against  himself,  and  to  have  his  guilt 
or  innocence  tried  by  a  jury.  And,  therefore,  in  all  crimi- 
nal proceedings,  and  in  those  also  which  *may 
'-  -^   be  termed  quasi-criminal,  such  as  a  mandamus, 

a  quo  warranto,  or  the  enforcement  of  a  penalty  or  for- 
feiture, there  is  no  jurisdiction  in  equity  (unless  conferred 
by  special  enactment),  either  to  compel  discovery  or  to 
afford  relief.^ 

The  jurisdiction  over  civil  rights  is  founded,  as  we  have 
seen,  on  the  writ  of  subpoena ;  and,  in  accordance  with  the 
requirements  of  that  writ,  is  exerted  for  a  double  purpose, 
viz. :  1.  For  discovery,  compelling  the  defendant  to  answer 
/  the  complaint ;  and  2.  For  relief,  compelling  him  to  per- 
form the  decree. 

The  Court  of  Chancery,  in  enforcing  discovery,  does 
not  depart  from  the  general  policy  of  the  law.  It  requires 
a  defendant  to  discover  the  truth  of  the  plaintiff's  claim, 
notwithstanding  that  he  is  himself  the  party  sued ;  but  it 
does  not  require  him  to  answer  questions  which  on  grounds 

^  Story  on  Plead.  553 ;  Re  Hertford,  1  Hare  584 ;  Attorney-General  v. 
Lucas,  2  Hare  566. 


INTRODUCTION.  11 

of  general  policy  he  is  entitled  to  resist.  In  accordance 
with  this  principle  it  is  held,  first,  that  no  man  need  dis- 
cover matters  tending  to  criminate  himself,  or  to  expose 
him  to  a  penalty  or  forfeiture ;  secondly,  no  man  need 
discover  legal  advice  which  has  been  given  him  by  his 
professional  advisers,  or  statements  of  fact  which  have 
passed  between  himself  and  them  in  reference  to  the  dis- 
pute in  litigation  ;  and  thirdly,  that  official  persons  must 
not  disclose  matters  of  State,  the  publication  of  which 
may  be  prejudicial  to  the  community. 

Subject  to  these  restrictions,  every  competent  defend- 
ant in  equity  must  answer  on  oath  as  to  all  facts  material  to 
the  plaintiff's  case.  He  must  answer  to  all  and  not  to  a 
portion  only.  And  he  must  answer  distinctly,  completely, 
without  needless  prolixity,  and  to  the  best  of  his  infor- 
mation and  belief.  He  is  also  bound,  if  required  by  the 
plaintiff,  to  set  forth  a  list  of  all  documents  in  his  posses- 
sion or  power  from  which  similar  discovery  can  be  ob- 
tained ;  and  if  the  possession  of  such  documents  and  their 
character  as  fit  subjects  of  discovery  can  be  shown  from 
this  answer,  he  must  permit  the  plaintiff  to  inspect  and 
copy  them. 

The  jurisdiction  thus  exercised  for  enforcing  discovery 
is  available  in  aid  of  proceedings  of  civil  relief,  whether 
such  relief  be  asked  from  the  Court  of  Chancery,  or  from 
any  other  public  tribunal  which  is  itself  unable  to  enforce 

discovery.     If  the  consequent  relief  *be  attain-  r*  •n 

•^    .  ^  pxxxvii  I 

able  in  equity,  a  prayer  to  that  effect  is  intro- 
duced in  the  bill,  which  is  then  termed  a  bill  for  relief,  of 
more  correctly  for  discovery  and  relief.  If  it  be  attain- 
able in  a  different  Court,  the  mere  fact  that  discovery  is 
requisite  will  not  alter  the  jurisdiction.  The  Court  of 
Chancery  will  compel  the  discovery,  but  the  relief  must 


^ 


12  ADAMS'S    DOCTRINE    OF    EQUITY. 

be  sought  before  the  appropriate  tribunal,  and  the  bill  is 
for  discovery  alone. 

In  addition  to  the  jurisdiction  for  discovery,  there  is 
another  substantially  similar  under  which  the  Court  of 
Chancery  interposes ;  namely,  for  the  procurement  of  evi- 
dence to  be  used  elsewhere,  without  itself  deciding  on 
the  result,  viz.,  in  suits  for  a  commission  to  examine  wit- 
nesses abroad,  and  in  suits  for  the  perpetuation  of  testi- 
mony where  the  subject-matter  cannot  be  immediately 
investigated;  and  for  granting,  in  aid  either  of  its  own 
proceedings  or  of  a  proceeding  elsewhere,  the  peculiar 
remedy  termed  an  examination  de  bene  esse. 

The  jurisdiction  of  equity  to  grant  relief  originates,  as 
we  have  seen,  in  the  occasional  inadequacy  of  the  remedy 
at  law,  and  the  supplemental  character  which  it  thus  sus- 
tains gives  rise  to  two  important  maxims :  the  one,  that 
"  equity  follows  the  law ;"  the  other,  "  that  he  who  would 
have  equity  must  do  equity."  The  former  maxim,  that 
"  equity  follows  the  law,"  imports  that  if  a  legal  claim, 
i.  €.,  a  claim  triable  at  law,  be  contested  in  equity,  it  will 
be  decided  in  accordance  with  the  legal  right,  if  the  con- 
tested claim  be  equitable,  i.  e.,  triable  in  equity  alone,  the 
decision  will  follow  the  analogy  of  law.  The  latter  maxim, 
that  "  he  who  would  have  equity  must  do  equity,"  imports 
that  where  a  party,  not  content  with  his  legal  remedy, 
seeks  the  supplemental  aid  of  equity,  he  must  give  effect 
to  all  equitable  rights  in  his  adversary  respecting  the 
subject-matter  of  the  suit. 

The  cases  of  inadequacy  at  common  law,  which  origi- 
nate the  supplemental  jurisdiction  of  equity,  may  be  con- 
veniently divided  under  two  heads,  viz. :  1.  Where  the 
Courts  of  ordinary  jurisdiction  cannot  enforce  a  right; 
and  2.  Where  they  cannot  administer  it. 


INTRODUCTION.  13 

The  equities  under  the  first  head  of  this  division,  viz., 

where  the  Courts  of  ordinary  jurisdiction  cannot  enforce 

a  right,  are  those  for  performance  of  trusts  and  contracts; 

for  election  between  inconsistent  benefits;  for  completion 

of  gifts  on  meritorious    consideration   in  favor   of  the 

donor's  intention  after  his  death;  for    giving  effect   to 

*discharores   by  matter  in  pais  of  contracts    r*  •••t 

°        ''         .  -        .  .  I*xxxvuij 

under  seal;  for  rehef  against  penalties  and 

forfeited  mortgages;  for  re-execution  or  correction  of 
instruments  which  have  been  lost  or  erroneously  framed; 
for  setting  aside  transactions  which  are  illegal  or  fraudu- 
lent, or  which  have  been  carried  on  in  ignorance  or  mis- 
take of  material  facts ;  and  for  injunction  against  irrepar- 
able torts. 

The  jurisdiction  to  enforce  performance  of  trusts  arises 
where  property  has  been  conferred  upon,  and  accepted 
by,  one  person  on  the  terms  of  using  it  for  the  benefit  of 
another.  The  former  person,  or  owner  at  law,  is  called 
the  trustee ;  the  latter  or  owner  in  equity  the  cestui  que 
trust.  And  it  is  manifest  that  the  trustee,  being  the  ad- 
mitted owner  at  law,  may  deal  with  the  property  at  law 
as  his  own,  and  that  the  equitable  ownership,  or  right  to 
compel  performance  of  the  trust,  is  only  cognisable  in  the 
Court  of  Chancery. 

In  order  to  originate  a  trust,  two  things  are  essential : 
first,  that  the  ownership  conferred  be  coupled  with  a  trust, 
either  declared  by  the  parties  or  resulting  by  presumption 
of  law ;  and  secondly,  that  it  be  accepted  on  those  terms 
by  the  trustee.  The  consequence  of  its  creation  and  ac- 
ceptance is,  that  the  property  is  subjected  to  a  double 
ownership,  an  equitable  ownership  in  the  cestui  que  trust, 
and  a  legal  ownership  in  the  trustee. 

The  equitable  ownership  is  in  strictness  a  mere  chose 


14  ADAMS's    DOCTRINE    OF    EQUITY. 

in  action,  or  right  to  sue  a  subpoena  against  the  trustee ; 
but  it  is  considered  in  equity  the  estate  itself,  and  is 
generally  regulated  by  principles  corresponding  with  those 
which  apply  to  an- estate  at  law.  The  terms  in  which  it 
is  declared  are  interpreted  by  the  same  rules ;  it  is  sub- 
ject to  the  same  restraints  of  policy,  and  is  governed  by 
the  same  laws  of  devolution  and  transfer.  The  analogy, 
however,  which  exists  between  the  two  forms  of  owner- 
ship, is  not  free  from  exception.  The  legal  rules  of  in- 
terpretation, though  uniformly  applicable  to  an  executed 
trust,  i.  e,,  a  trust  of  which  the  scheme  has  in  the  outset 
been  completely  declared,  are  not  applied  with  equal 
stringency  in  determining  the  limitations  of  an  executory 
trust,  i.  e.,  a  trust  where  the  ultimate  object  has  been 
alone  denoted,  with  a  direction  to  effectuate  that  object 
in  some  convenient  way.  The  .legal  restraints  of  policy, 
though  generally  binding  an  equitable  estate,  admit  in 
that  respect  of  two  singular  exceptions ;  the  one  in  what 
are  called  the  separate  use  and  pin-money  trusts,  enabling 
a  married  woman  to  hold  property  independent  of  her 
r^  .  -1  husband,  and  allowing  *such  property  to  be 
made  inalienable;  the  other  in  what  is  called 
the  wife's  equity  for  a  settlement,  restraining  the  hus- 
band's rights  over  her  equitable  chattels  real  and  choses 
in  action  until  an  adequate  settlement  has  been  made. 
And  in  respect  also  to  the  devolution  of  trusts,  there  are 
two  exceptions  to  the  general  rule ;  the  one  real  in  their 
exemption  from  dower,  the  other  apparent  in  the  attendance 
of  satisfied  terms  on  the  inheritance,  so  that  the  trust 
devolves  on  the  real  instead  of  the  personal  representative. 
The  means  by  which  an  equitable  ownership  is  trans- 
ferred or  charged,  where  its  subject-matter  is  personal 
estate,  are  analogous  to  those  which  apply  to  a  legal  own- 


INTRODUCTION.  15 

ership,  rather  than  strictly  identical  with  them.  The  dis- 
tinction originates  in  the  doctrine  that  personal  property 
passes  at  law  by  mere  delivery,  which,  where  an  equitable 
interest  is  transferred,  may  not  be  practicable;  and,  there- 
fore, in  order  to  pursue  as  nearly  as  possible  the  analogy 
of  law,  it  is  required  that  the  assignment  of  an  equitable 
interest  should  be  perfected  by  notice  to  the  trustee,  so 
as  to  deprive  the  assignor  of  subsequent  control  and  to 
effect  a  constructive  delivery  to  the  assignee.  It  is  other- 
wise with  respect  to  real  estate.  For  real  estate  passes 
by  title,  and  not  by  delivery ;  and  the  character  of  the 
grantor's  interest,  whether  legal  or  equitable,  does  not 
affect  the  terms  of  his  deed.  The  principle  of  construc- 
tive delivery  by  notice  to  the  trustee  is  applied  also  to  a 
debt  or  other  chose  in  action.  The  right  of  recovering 
such  an  interest,  like  that  of  enforcing  a  trust,  is  in  strict- 
ness merely  a  right  of  litigation,  and  except  in  the  case 
of  negotiable  securities,  is  not  capable  of  transfer  at  law. 
But  if  it  be  in  substance  a  right  of  property,  it  is  treated 
in  equity  as  of  that  character,  and  may  be  transferred  by 
an  assignment  or  agreement  to  assign,  perfected  by  notice 
to  the  party  liable. 

The  legal  ownership  of  the  trustee  confers  on  him  at  law 
an  absolute  dominion,  but  is  considered  in  equity  as  sub- 
servient to  the  trust ;  so  that  the  trustee  is  bound  to  use 
it  for  those  purposes,  and  those  only  which  were  contem- 
plated by  the  grantor;  to  account  for  and  protect  the 
property  whilst  the  trust  continues ;  to  restore  it  to  the 
parties  entitled  when  the  trust  is  at  an  end ;  and  not  to 
avail  himself  of  his  fiduciary  character  for  any  object  of 
personal  benefit.  If  he  performs  his  duties,  he  may  claim 
indemnity  against  all  personal  loss  ;  but  if  he  fail  in  their 
performance,  he  is  liable,  at  the  option  of  the  cestui  que 


16  ADAMS's    DOCTRINE    OF    EQUITY. 

trust,  either  to  replace  the  property  in  its  rightful 
*state,  or  to  account  for  any  benefit  which  has 
•-  -■  ■  accrued ;  nor  will  the  mere  lapse  of  time,  if  unac- 
companied by  knowledge  and  acquiescence  on  the  part  of 
the  cestui  que  trust,  discharge  him  from  this  liability. 

Besides  the  ordinary  trusts  which  we  have  just  con- 
sidered, there  is  another  class  of  trusts — those  for  chari- 
table and  public  purposes,  where  the  legal  ownership  is 
conferred  on  a  fiduciary  holder,  but  the  trust  is  declared 
for  general  objects,  and  not  for  the  benefit  of  a  specific 
owner.  The  incidents  of  a  trust  of  this  class  are,  for 
the  most  part,  the  same  with  those  of  one  for  ordinary 
purposes.  But  there  are  two  principal  distinctions ;  the 
one,  that  a  charitable  trust  is  not  affected  by  lapse  of  time 
in  the  same  manner  as  a  trust  for  private  persons ;  the 
other,  that  w^here  an  apparent  charitable  intention  has 
failed,  whether  by  an  incomplete  disposition  at  the  outset, 
or  by  subsequent  inadequacy  of  the  original  object,  effect 
may  be  given  to  it  by  a  ci/  pres  or  approximate  apjDlica- 
tion,  to  the  exclusion  of  a  resulting  trust  for  the  donor. 

The  jurisdiction  of  equity  for  superintending  a  chari- 
table trust  is  called  into  action  by  information  of  the 
Attorney-General,  suing  on  behalf  of  the  Crown.  It 
extends  in  the  case  of  unincorporated  charities,  to  their 
internal  administration  as  well  as  to  the  management  of 
their  estates.  But  in  the  case  of  eleemosynary  corpora- 
tions it  is  confined  to  the  latter  object ;  and  the  internal 
administration  of  such  charities,  together  with  the  elec- 
tion and  amotion  of  corporators,  is  exclusively  subject  to 
the  jurisdiction  of  a  visitor.  In  addition  to  the  jurisdic- 
tion of  the  Court  of  Chancery  over  charities,  a  special 
jurisdiction  was  created  by  43  Eliz.  c.  4,  called  the  Statute 
of  Charitable  Uses,  to  be  exercised  by  commissioners  ap- 


INTRODUCTION.  17 

pointed  by  the  Crown.  But  their  jurisdiction  has  now 
fallen  into  disuse.  And  there  is  also  a  summary  jurisdic- 
tion in  equity,  to  be  enforced  on  petition,  instead  of 
information  or  bill,  created  by  52  Geo.  3,  c.  101,  com- 
monly known  as  Sir  Samuel  Romilly's  Act. 

The  jurisdiction  of  compelling  performance  of  a  con- 
tract involves  the  consideration,  not  merely  of  what  is 
technically  termed  specific  performance,  but  also  of  the 
doctrines  of  election,  of  meritorious  or  imperfect  conside- 
ration, of  the  discharge  by  matter  in  pais  of  contracts 
under  seal,  and  of  relief  against  penalties  and  forfeited 
mortgages. 

The  equity  to  compel  specific  performance  of  a  contract 
arises  where  a  contract  binding  at  law  has  been  infringed, 
and  the  remedy  *at  law  by  damages  is  inadequate.  ^  y-i 
And  in  order  to  originate  this  equity,  it  is  essen- 
tial that  the  contract  shall  have  been  made  for  valuable 
consideration,  and  that  its  enforcement  in  specie  be  prac- 
ticable and  necessary. 

The  first  requisite  is,  that  the  contract  be  made  for 
valuable  consideration.  For  so  long  as  a  promise  rest  in 
fieri,  there  is  not,  in  the  absence  of  such  consideration, 
any  equity  to  insist  on  its  performance.  It  is  otherwise 
if  the  promise  has  been  already  executed,  either  by  the 
transfer  of  the  legal  ownership,  or  by  the  creation  of  a 
final  trust.  The  exact  line  of  demarcation,  where  the 
contract  ceases  to  be  an  executory  agreement  and  be- 
comes a  perfected  trust  in  equity,  is  often  difficult  to  dis- 
tinguish. But  the  principle  itself  is  sufficiently  clear. 
If  the  donor  has  perfected  his  gift  in  the  way  which  he 
intended-  so  that  there  is  nothing  left  for  him  to  do,  and 
nothing  which   he   has   authority  to   countermand,  the 

donee's  right  is  enforceable  as  a  perfected  trust,  and  the 
2 


18  ADAMs's    DOCTRINE     OF    EQUITY. 

consideration  is  immaterial.  If,  on  the  contrary,  the 
transaction  is  incomplete,  and  its  final  completion  is  asked 
in  equity,  the  court  will  not  interpose  to  perfect  the  lia- 
bility without  first  inquiring  into  the  origin  of  the  claim 
and  nature  of  the  consideration. 

The  second  requisite  is,  that  the  enforcement  in  specie 
be  practicable ;  and  therefore,  if  the  contract  is  one 
which  the  party  making  it  is  unable  to  perform,  or  which 
the  Court  is  unable  practically  to  enforce,  performance 
will  not  be  decreed;  and  the  same  result  will  frequently 
follow  where  enforcement  is  sought  against  the  defendant, 
but  a  corresponding  performance  by  the  other  party 
cannot  be  secured. 

The  third  requisite  is,  that  the  enforcement  in  specie 
be  necessary  as  well  as  practicable;  and  therefore,  if  the 
possession  of  the  specified  thing  is  not  essential,  but  a 
compensation  in  damages  will  redress  its  loss,  the  Court 
will  not  interpose.  And  in  determining  on  its  necessity, 
the  effect  on  both  parties  will  be  taken  into  consideration; 
and  specific  performance  may  be  refused,  if  there  has 
been  any  unfairness  on  the  part  of  the  plaintiff,  or  if  the 
defendant  has  entered  into  the  contract  by  mistake,  or 
even  on  the  mere  ground  that  the  contract  is  a  hard  one, 
and  that  its  enforcement  in  specie  would  press  heavily  on 
him. 

In  applying  this  equity  to  contracts  relating  to  real 
estate,. there  are  some  modifications  of  legal  rules  which 
P^  ,..-,  at  first  sight  appear  inconsistent  *with  them,  and 
repugnant  to  the  maxim,  that  "equity  follows 
the  law."  The  modifications  here  referred  to  are  those  of 
enforcing  parol  contracts  relating  to  land,  on  the  ground 
that  they  have  been  already  performed  in  part;  of  allow- 
ing time  to  make  out  a  title  beyond  the  day  which  the 


INTRODUCTION.  19 

contract  specifies ;  and  of  allowing  a  conveyance  with 
compensation  for  defects.  The  wisdom  of  permitting  any 
deviation  is  a  subject  admitting  of  much  doubt.  But 
the  particular  doctrines  now  in  question  are  fully  estab- 
lished by  the  course  of  precedent,  and  may  perhaps  be 
considered,  not  so  much  deviation  from  the  rule  of  law, 
as  subordinate  equities,  or  developments  from  the  ori- 
ginal doctrine,  that  specific  performance  of  a  contract, 
and  not  pecuniary  compensation  for  its  breach,  is  the 
equitable  measure  of  redress. 

The  first  of  these  subordinate  equities  is  that  of  enforc- 
ing parol  contracts  relating  to  land,  on  the  ground  that 
they  have  been  already  performed  in  part.  A  parol  con- 
tract in  relation  to  land  is  made  incapable  of  enforcement 
by  the  Statute  of  Frauds;  and,  so  long  as  the  contract  re- 
mains in  fieri,  it  is  alike  ineffectual  at  law  and  in  equity- 
It  sometimes,  however,  happens  that  a  contract  which  is 
still  in  fiefri  at  law,  has  been  already  performed  by  con- 
struction of  equity;  for  if  it  is  one  of  which  specific  per- 
formance would  be  decreed,  it  is  itself  in  some  sort  an 
equitable  title ;  and  if  the  parties  have  clothed  that  title 
with  possession,  or  have  otherwise  acted  on  it  as  an  exist- 
ing ownership,  they  are  held  to  have  perfected  their 
agreement  in  equity,  and  if  the  terms  of  their  parol  con- 
tract can  be  proved,  may  be  decreed  to  perfect  it  by  a 
conveyance  at  law 

The  second  equity  is  that  of  allowing  time  to  make  out 
a  title  beyond  the  day  which  the  contract  specifies.  The 
rule  on  this  point  is  expressed  by  the  maxim,  that  "  time 
is  not  of  the  essence  of  the  contract  in  equity;"  and  it 
seems,  like  that  of  part  performance,  to  be  founded  on  the 
principle,  that  the  contract  itself  is  in  the  nature  of  a  title, 
so  that  if  a  substantial  ownership  exists,  though  the  title 


20  ADAMS's    DOCTRINE    OF    EQUITY. 

be  not  fully  cleared  on  the  appointed  day,  specific  per- 
formance may  be  properly  decreed. 

The  third  equity  is  that  of  allowing  a  conveyance  with 
compensation  for  defects,  where  a  contract  has  been  made 
for  sale  of  an  estate,  which  cannot  be  literally  performed 
in  toto,  whether  by  reason  of  an  unexpected  failure  in  the 
title  to"  part,  of  inaccuracy  in  the  terms  of  description,  or 
p  ,...-,  of  diminution  in  value  by  a  liability  to  a  *charge. 
The  principle  of  this  equity  appears  to  be,  that 
where  the  property  contracted  for  can  be  substantially 
transferred,  it  is  against  conscience  to  take  advantage  of 
small  circumstances  of  variation.  The  equity  for  perform- 
ance with  compensation  may  be  enforced  by  either  the 
vendor  or  purchaser,  but  is  of  course  more  readily  granted 
to  the  latter.  In  either  case  the  defect  must  be  one 
admitting  of  compensation,  and  not  a  mere  matter  of  arbi- 
trary damages,  and  the  compensation  given  must  be  really 
compensation  for  a  present  loss,  and  not  indemnity 
against  a  future  risk. 

A  corresponding  relief  to  that  by  specific  performance 
is  given,  even  in  the  absence  of  a  contract,  in  the  case  of 
title  deeds  or  specific  chattels  of  peculiar  value,  detained 
from  the  legitimate  owner,  by  directing  them  to  be  de- 
livered up  or  secured. 

The  equities  of  election  and  meritorious  or  imperfect 
consideration  are  closely  connected  with  the  principle 
which  has  been  already  stated  of  enforcing  those  contracts 
and  those  only,  which  are  based  on  valuable  consideration. 

The  first  of  these  equities  is  that  of  election.  The 
equity  to  enforce  contracts  made  for  value  is  extended  by 
parity  of  reasoning  to  cases  where  a  benefit  has  been  con- 
ferred as  the  consideration  for  an  act,  and  knowingly  ac- 
cepted, although  the  party  so  accepting  it  may  not  be 


INTRODUCTION.  21 

bound  by  an  actual  contract,  or  by  a  condition  of  perform- 
ance annexed  to  the  gift.  The  equity  of  election  is  anal- 
ogous to  this:  it  applies,  not  to  cases  of  contract  or  of 
conditional  gift,  but  to  those  in  which  the  donor  of  an 
interest  by  will  has  tacitly  annexed  a  disposition  to  his 
bounty,  which  can  only  be  effected  by  the  donee's  consent; 
e.  g.,  where  a  testator  leaves  a  portion  of  his  property  to 
A.,  and  by  the  same  will  disposes  of  property  belonging 
to  A.  In  this  case  there  is  no  contract  by  A.  to  relinquish 
his  own  property,  nor  is  there  any  condition  annexed  to 
the  testator's  gift,  which  requires  him  to  do  so  as  a  term 
of  its  acceptance.  But  the  fact  that  a  double  disposition 
has  been  made,  implies  that  he  shall  not  have  both  the  in- 
terests ;  and  he  must  therefore  elect  between  the  two,  and 
must  either  relinquish  his  own  property  or  compensate  the 
disappointed  donee  out  of  the  property  bequeathed,  A 
doubt,  however,  exists  on  this  last  point,  and  it  appears  to 
be  uncertain  whether  the  consequence  of  an  election  to 
take  against  the  will  is  confined  to  a  liability  to  compensate, 
or  is  a  forfeiture  of  the  property  devised. 

*The  doctrine  of  meritorious  consideration  origi-  p  ,.  -. 
nates  in  the  distinction  between  the  three  classes 
of  consideration,  on  which  promises  may  be  based,  viz., 
valuable  consideration,  the  performance  of  a  moral  duty, 
and  mere  voluntary  bounty.  The  first  of  these  classes 
alone  entitles  the  promisee  to  enforce  his  claim  against  an 
unwilling  promisor ;  the  third  is  for  all  legal  purposes  a 
mere  nullity  until  actual  performance  of  the  promise.  The 
second  or  intermediate  class  is  termed  meritorious,  and  is 
confined  to  the  three  duties,  of  charity,  of  payment  of 
creditors,  and  of  maintaining  a  wife  and  children,  or  per- 
sons towards  whom  the  party  promising  has  placed  him- 
self in  loco  parentis.     This  class  of  consideration  is  not  dis- 


22  ADAMS's    DOCTRINE    OF    EQUITY. 

tinguished  at  law  from  mere  voluntary  bounty,  but  is  to 
a  modified  extent  recognised  in  equity. 

The  rule  of  equity  on  this  subject  is,  that  although  a 
promise,  made  without  valuable  consideration,  cannot  be 
enforced  against  the  promisor  or  any  one  in  whose  favor 
he  has  altered  his  intention,  yet,  if  a  gift  on  meritorious 
consideration  be  intended,  but  imperfectly  executed,  and 
the  intention  remain  unaltered  at  the  death  of  the  donor, 
there  is  an  equity  to  enforce  the  intended  gift  against  per- 
sons claiming  by  operation  of  law,  without  an  equally  meri- 
torious claim.  The  principal  applications  of  this  equity 
are,  in  supplying  surrenders  of  copyhold  against  the  heir, 
and  in  supporting  defective  executions  of  powers,  when 
the  defect  is  formal,  against  the  remainderman.  Another 
class  of  cases  to  which  the  doctrine  of  meritorious  con- 
sideration applies,  are  those  where  a  man,  subject  to  a 
moral  duty,  does  an  act  which  may  have  reasonably  been 
meant  in  satisfaction  of  that  duty,  and  is  therefore  pre- 
sumed to  have  so  intended  it.  In  accordance  with  this 
principle,  acts  which,  as  between  strangers,  would  bear 
one  construction,  may  be  construed  differently  where  me- 
ritorious consideration  exists  ;  e.g.,  a  purchase  made  by  one 
person  in  the  name  of  another  may  be  construed  as  an  ad- 
vancement in  favor  of  a  child,  instead  of  a  resulting  trust 
for  the  purchaser.  A  legacy  may  be  construed  a  provi- 
sion instead  of  mere  bounty,  and  may,  as  such,  bear  in- 
terest from  the  testator's  death. 

The  equities  for  giving  effect  to  discharges  by  matter 
m  pais  of  contracts  under  seal,  and  for  relief  against  pen- 
alties and  forfeited  mortgages,  are  the  converse  to  the 
equity  for  specific  performance.  The  first  of  these  equi- 
ties originates  in  the  rule  of  law,  that  an  agreement  under 
seal,  technically  termed  an  agreement  by  specialty,  can 


INTRODUCTION.  23- 

only  *be  avoided  by  another  specialty,  and  that  it  r*  i  -i 
is  unaffected  by  matter  in  pais  which  would  ope- 
rate as  a  discharge  of  a  simple  contract.  In  equity,  the 
rule  is  otherwise ;  for  the  form  of  agreement  is  immate- 
rial, and  if  the  act  done  is  in  substance  a  discharge,  it 
will  warrant  a  decree  for  the  execution  of  a  release,  or 
for  delivery  up  and  cancellation  of  the  specialty.  The 
most  ordinary  application  of  this  equity  is  in  favor  of 
sureties,  where  a  guarantee  has  been  given  under  seal, 
and  the  creditor,  without  the  surety's  consent,  has  dis- 
charged or  modified  the  principal's  liability. 

The  second  of  these  equities  originated  in  the  rule  of 
law,  that,  on  breach  of  a  contract  secured  by  penalty,  the 
full  penalty  might  be  enforced  without  regard  to  the  damage 
sustained.  The  Court  of  Chancery,  in  treating  contracts 
as  matter  for  specific  performance,  was  naturally  led  to 
the  conclusion  that  the  annexation  of  a  penalty  did  not 
alter  their  character ;  and,  in  accordance  with  this  view, 
restrained  proceedings  to  enforce  the  penalty  on  a  subse- 
quent performance  of  the  contract  itself,  viz.,  in  the  case 
of  a  debt,  on  payment  of  the  principal,  interest  and  costs, 
or,  in  that  of  any  other  contract,  on  reimbursement  of  the 
actual  damage  sustained.  A  similar  authority  is  now  con- 
ferred by  statute  on  courts  of  law,  but  the  equitable  juris- 
diction is  not  destroyed.  The  same  relief  has  been  granted 
on  clauses  of  re-entry  for  non-performance  of  covenants 
in  a  lease  ;  but  the  soundness  of  the  application  is  ques- 
tioDable,  and  it  is  now  strictly  confined  to  cases  where  the 
covenant  is  for  payment  of  money,  so  that  the  damage 
may  be  certainly  measured  by  interest. 

The  equity  for  relief  against  penalties  applies  most  ex- 
tensively to  the  case  of  forfeited  mortgages,  where  a  loan 
has  been  secured  by  the  transfer  of  property,  with  a  con- 


24  ADAMS'S    DOCTRINE    OF    EQUITY. 


y. 


dition  to  redeem  on  a  specified  day,  and  the  right  of 
redemption  has  been  forfeited  at  law  by  non-payment  at 
the  appointed  time. 

The  equity  in  these  cases  is,  that  the  real  transaction 
is  a  loan  on  security,  and  the  forfeiture  by  non-payment 
is  a  mere  penalty,  which  may  be  relieved  against  on  sub- 
sequent satisfaction  of  the  debt.  If  it  be  not  in  fact  a 
loan,  but  a  hond  fide  sale,  with  power  to  repurchase,  there 
is  no  equity  to  interpose.  A  clause  of  redemption,  how- 
ever, is  prima  facie  evidence  that  a  loan  was  intended ; 
and  if  that  fact  be  established,  no  contemporaneous  stipu- 
lation can  clog  the  right  of  redemption,  or  entitle  the 
creditor  to  more  than  his  principal,  interest  and  costs. 
A  partial  power  to  give  relief  in  cases  of  *mort- 
'-  ^  gage  has  been  also  conferred,  by  7  Geo.  2,  c. 
20,  on  courts  of  common  law. 

The  right  of  the  mortgagor  to  redeem  is  termed  his 
"Equity  of  Redemption,"  and  is  treated  in  equity  as  a 
continuance  of  his  estate,  subject  to  the  mortgagee's 
pledge  for  repayment.  And  therefore,  whilst  he  is  left 
in  possession  by  the  mortgagee,  he  is  looked  upon  as 
holding  in  respect  of  his  ownership,  and  is  not  accounta- 
ble for  his  receipts. 

The  legal  ownership  of  the  mortgagee  is  e  converso 
treated  as  a  mere  pledge  for  repayment.  He  may  enter 
into  possession  if  he  think  fit ;  but,  if  he  does  so,  is  ac- 
countable for  all  which  he  receives,  or,  without  wilful 
default,  might  have  received ;  and  if  he  has  taken  posses- 
sion when  no  interest  was  in  arrear,  or  has  continued  in 
possession  after  both  principal  and  interest  were  dis- 
charged, he  is  liable  for  interest. 

The  remedy  of  the  mortgagee  by  taking  possession  is 
practically  very  inconvenient,  yet  if  the  forfeiture  by  non- 


INTRODUCTION.  25 

payment  had  been  taken  away,  and  not  replaced  by  any 
substitute,  it  would  have  been  the  only  one  attainable 
under  his  security.  To  remedy  this  objection,  he  is 
allowed,  after  forfeiture,  to  file  a  bill  praying  foreclosure 
of  the  equity  to  redeem.  A  new  day  for  payment  is  then 
fixed  by  decree ;  and  if  default  be  made,  the  mortgagor's 
right  is  destroyed.  The  right,  however,  is  merely  to  fore- 
close the  equity,  and  does  not  extend  to  warrant  a  sale. 

In  addition  to  regular  or  perfected  mortgages,  which 
convey  the  legal  estate  to  the  mortgagee,  and  specify  a 
day  of  forfeiture  at  law,  there  are  other  securities  of  an 
analogous  character,  but  defective  in  one  or  both  of  these 
respects.  These  imperfect  securities  are  seven  in  number, 
viz.,  1.  Mortgages  of  a  trust,  or  equity  of  redemption, 
and  equitable  mortgages  by  imperfect  conveyance  or  by 
contract  to  convey.  In  these  mortgages  the  legal  owner- 
ship is  not  transferred,  and  the  mortgagee  therefore  cannot 
obtain  possession  at  law,  but  is  entitled  in  equity  to  a  re- 
ceiver of  the  rents  ;  2.  Equitable  mortgages  by  deposit 
of  title  deeds,  unaccompanied  by  a  written  contract. 
Under  these  mortgages  there  is  the  same  right  to  a  re- 
ceiver as  in  the  preceding  class ;  and  there  is  a  doubt 
whether,  in  addition  to  the  remedy  by  foreclosure,  the 
mortgagee  has  not  an  alternative  remedy  by  sale  of  the 
estate  ;  3.  Welsh  mortgages,  in  which  there  is  no  specified 
day  of  payment,  but  the  contract  is  for  payment  out  of 
the  *rents  :  in  this  case  the  mortgagee's  remedy  p^  ,  ..-. 
is  confined  to  perception  of  rents,  and  he  has 
no  right  to  foreclosure  or  sale ;  4.  Trust  deeds  in  the 
nature  of  mortgage,  which  are  mere  conveyances  to  the 
creditor  on  trust  to  sell  and  to  retain  his  debt  out  of  the 
proceeds  ;  5.  The  equitable  lien  of  a  vendor  or  purchaser 
of  real  estate,  where  the  one  has  conveyed  before  pay- 


26  ADAMS's    DOCTRINE    OF    EQUITY. 

ment,  or  the  other  has  paid  before  conveyance.  In  either 
of  these  cases  the  payment  or  return,  as  the  case  may  be, 
of  the  purchase-money,  is  secured  in  equity  by  an  im- 
plied charge  on  the  land;  6.  Equitable  fieri  facias  and 
elegit,  where  a  judgment  is  made  available  against  trusts 
and  equities,  either  by  injunction  against  setting  up  an 
outstanding  estate  in  bar  of  execution  at  law,  by  appoint- 
ment of  a  receiver  of  the  accruing  profits,  or  by  permit- 
ing  the  judgment  creditor  to  redeem ;  and,  7.  Judgment 
charges  under  1  &  2  Vict.  c.  110,  ss.  13,  14,  by  which  a 
judgment  is  made  a  charge  in  equity,  on  the  debtor's  in- 
terest in  real  estate  and  in  stock  or  shares  enforceable  in 
like  manner  with  a  charge  by  contract. 

In  immediate  connection  with  the  subjects  just  con- 
sidered of  trust,  contract  and  mortgage,  we  have  to  con- 
sider the  doctrines  of  equitable  conversion  and  of  priority 
among  conflicting  equities  :  doctrines  which,  though  ap- 
plicable to  all  subjects  of  equitable  jurisdiction,  are  more 
especially  important  in  regard  to  these. 

The  doctrine  of  equitable  conversion  is  embodied  in 
the  maxim,  that  "  what  ought  to  be  done,  is  considered 
in  equity  as  done ;"  and  its  meaning  is,  that  whenever 
the  holder  of  property  is  subject  to  an  equity  in  respect 
of  it,  the  Court  will,  as  between  the  parties  to  the  equity, 
treat  the  subject-matter  as  if  the  equity  had  been  worked 
out,  and  as  impressed  with  the  character  which  it  would 
then  have  borne.  The  simplest  operation  of  this  maxim 
is  found  in  the  rule  already  noticed,  that  trusts  and  equi- 
ties of  redemption  are  treated  as  estates ;  but  its  effect 
is  most  obvious  in  the  constructive  change  of  property 
from  real  to  personal  estate,  and  vice  versa,  so  as  to  in- 
troduce new  laws  of  devolution  and  transfer.  If,  for  ex- 
ample, an  imperative  trust  is  created,  either  for  employ- 


INTRODUCTION.  27 

ing  money  in  the  purchase  of  land,  or  for  selling  land  and 
turning  it  into  money,  the  money  or  land,  of  which  a 
conversion  is  directed,  will  be  dealt  with  in  equity  during 
the  continuance  of  the  trust,  and  for  objects  within  the 
scope  of  the  trust,  as  if  the  purchase  or  sale  had  been 
actually  made.  In  like  manner,  if  a  binding  contract  be 
made  for  *the  sale  of  land,  enforceable  in  equity,  p^  ,  ...-• 
such  contract,  though  in  fact  unexecuted,  is  con- 
sidered as  performed,  so  that  the  land  becomes  in  equity 
the  property  of  the  vendee,  and  the  purchase-money  that 
of  the  vendor. 

The  doctrine  of  conversion,  by  changing  the  character 
of  trusts  and  contracts,  and  altering  them  from  mere 
rights  of  action  into  actual,  though  imperfect  titles  in 
equity,  gives  rise  to  questions  between  them  and  the 
legal  title,  and  also  to  questions  between  conflicting  equi- 
ties, where  several  have  been  created  in  reference  to  the 
same  thing. 

The  rule  of  priority  in  regard  to  transfers  and  charges 
of  the  legal  estate  is,  that  the  order  of  date  prevails, 
subject,  however,  to  modifications  by  statute  in  respect 
to  voluntary  or  fraudulent  grants ;  and  the  same  rule, 
subject  to  the  same  modifications,  governs,  in  the  absence 
of  a  special  equity,  transfers  and  charges  of  the  equitable 
interest.  But  if  legal  and  equitable  titles  conflict,  or  if, 
in  the  absence  of  a  legal  title,  there  is  a  perfect  equitable 
title  by  conveyance  on  the  one  hand,  and  an  imperfect 
one  by  contract  on  the  other,  a  new  principle  is  introduced, 
and  priority  is  given  to  the  legal  title,  or  if  there  is  no 
legal  title,  to  the  perfect  equitable  one.  This  doctrine  is 
embodied  in  the  maxim,  that '"'  between  equal  equities  the 
law  will  prevail."  > 

In  order  that  this  maxim  may  operate,  it  is  essential 


28  ADAMS's    DOCTRINE    OF    EQUITY. 

that  the  equities  be  equal.  If  they  are  unequal,  the 
superior  equity  will  prevail.  And  such  superiority  may 
be  acquired  under  any  of  the  three  following  rules :  1. 
The  equity  under  a  trust  or  a  contract  in  rem  is  superior 
to  that  under  a  voluntary  gift,  or  under  a  lien  by  judg- 
ment at  law ;  2.  The  equity  of  a  party  who  has  been 
misled,  is  superior  to  his  who  has  wilfully  misled  him;  3, 
A  party  taking  with  notice  of  an  equity,  takes  subject  to 
that  equity. 

If  no  superior  equity  exists,  the  common  course  of  law 
is  not  interfered  with.  The  equities  are  equal,  and  the 
law  or  the  analogy  of  law  will  prevail.  If  there  be  a 
legal  right  in  either  party,  the  Court  of  Chancery  remains 
neutral,  and  the  matter  is  left  to  be  decided  at  law  with- 
out either  relief  or  discovery  in  equity.  If  there  be  no 
legal  right  it  cannot  be  neutral ;  and,  therefore,  acts  on 
the  analogy  of  law,  and  gives  priority  to  that  title  which 
most  nearly  approximates  to  a  legal  one,  viz.,  to  an  exe- 
cuted and  perfect  title  in  equity,  rather  than  to  one  which 
is  executory  and  imperfect. 

P^  ,.  -,  *The  maxim  of  non-interference  between  equal 
equities  is  the  foundation  of  the  doctrine  of  tack- 
ing in  equity.  The  cases  to  which  this  doctrine  applies 
are  those  where  several  encumbrances  have  been  created 
on  an  estate,  and  two  or  more  of  them,  not  immediately 
successive  to  each  other,  have  become  vested  in  a  single 
claimant.  Under  these  circumstances  the  question  arises, 
whether  an  intermediate  claimant  may  redeem  one  of  such 
encumbrances,  and  postpone  the  other  to  his  own  charge, 
or  whether  the  party  holding  the  two  encumbrances  may 
tack  or  consolidate  them,  so  that  the  earlier  in  date  can- 
not be  separately  redeemed.  The  doctrine  on  this  point 
is,  that  if  the  double  encumbrancer  is  clothed  with  a  legal 


INTRODUCTION.  29 

or  superior  equitable  right,  he  may,  as  against  the  mesne 
claimants,  tack  to  it  a  claim  for  any  further  amount  due 
to  him  in  the  same  character,  which  was  advanced  ex- 
pressly or  presumptively  on  the  credit  of  the  estate  with- 
out notice  of  the  mesne  equity.  A  similar  equity  accrues 
where  two  mortgages  of  different  estates  are  made  to  one 
person,  or,  being  originally  made  to  two,  become  vested 
in  one,  whilst  the  equities  of  redemption  remain  united 
in  a  single  hand.  In  such  a  case  neither  the  mortgagor, 
nor  any  person  making  title  under  him,  can,  after  forfeit- 
ure, redeem  one  without  redeeming  both. 

In  addition  to  the  equity  for  performance  of  a  trust  or 
contract  where  the  original  transaction  and  its  evidence 
are  unimpeached  and  clear,  there  is  an  equity  for  re-exe- 
cution, correction,  or  rescission,  where  the  instrument 
evidencing  a  transaction  is  destroyed  or  lost;  where, 
through  mistake  or  accident  it  has  been  incorrectly 
framed ;  or  where  the  transaction  is  vitiated  by  illegality 
or  fraud,  or  as  having  been  carried  on  in  ignorance  or  mis- 
take of  facts  material  to  its  operation.  These  equities, 
like  the  equity  for  performance  in  specie,  are  incapable 
of  enforcement  by  the  courts  of  law,  and  fall  therefore 
within  the  province  of  the  Court  of  Chancery. 

The  equity  for  re-execution  and  other  similar  relief 
arises,  not  only  on  wilful  destruction  or  concealment,  but 
also  on  an  accidental  destruction  or  loss,  where  the  miss- 
ing instrument  is  such  that  its  non-production  would  per- 
petuate a  defect  of  title,  or  would  preclude  the  plaintiff 
from  recovering  at  law.  Such  for  instance  is  a  convey- 
ance or  bond,  which  under  the  old  practice  must  have 
been  pleaded  with  profert  at  law,  and  a  negotiable  n^.,-! 
security,  which  must  be  produced  *at  law  before  ver- 
dict, because  the  court  cannot  otherwise  indemnify  the 
defendant  against  its  possible  reappearance. 


30  ADAMS's    DOCTRINE    OF    EQUITY. 

The  equity  to  correct  written  instruments  which  have 
been  erroneously  framed,  is  appropriate  to  chancery 
alone ;  for  a  court  of  law  cannot  compel  an  alteration  in 
the  instrument,  and  its  entire  avoidance  would  be  a  nullifi- 
cation, and  not  an  affirmance,  of  what  was  meant.  It 
arises,  firstly,  where  an  instrument  has  been  executed  in 
order  to  the  performance  of  a  pre-existing  trust,  but  is 
framed  in  a  manner  inconsistent  with  its  terms  ;  secondly, 
when  an  instrument  purports  to  carry  into  effect  an  agree- 
ment which  it  recites,  and  exceeds  or  falls  short  of  that 
agreement;  and,  thirdly,  where  an  instrument  is  admit- 
ted or  proved  to  have  been  made  in  pursuance  of  a  prior 
agreement,  by  the  terms  of  which  both  parties  meant  to 
abide,  but  with  which  it  is  in  fact  inconsistent ;  or  where  it 
is  admitted  or  proved  that  an  instrument,  intended  by  both 
parties  to  be  prepared  in  one  form,  has  by  an  undesigned 
insertion  or  omission  been  prepared  and  executed  in 
another.  It  is  in  conformity  with  this  principle  that 
bonds  given  for  payment  of  a  joint  and  several  debt,  but 
drawn  up  as  merely  joint,  have  been  reformed  in  equity, 
and  made  joint  and  several,  in  conformity  with  the  origi- 
nal liability ;  and  that  mortgages  by  husband  and  wife  of 
the  wife's  estate,  which  have  limited  the  equity  of  re- 
demption to  the  husband,  have  been  reformed  by  restor- 
ing it  to  the  wife. 

The  equity  for  rescission  and  cancellation  arises  where 
a  transaction  is  vitiated  by  illegality  or  fraud,  or  by  reason 
of  its  having  been  carried  on  in  ignorance  or  mistake  of 
facts  material  to  its  operation.  And  it  is  exercised  for  a 
double  purpose  ;  first,  for  cancelling  executory  contracts 
where  such  contracts  are  invalid  at  law,  but  their  invalidity 
is  not  apparent  on  the  instrument  itself,  so  that  the  defence 
may  be  nullified  by  delaying  to  sue  until  the  evidence  is 


INTRODUCTION.  31 

lost;  and  secondly,  for  setting  aside  executed  convey- 
ances or  (*ther  impeachable  transactions,  where  it  is  neces- 
sary to  place  the  parties  in  statu  quo.  An  executed  con- 
veyance, however,  cannot  generally  be  set  aside  on  the 
ground  of  its  illegal  or  immoral  character,  for  it  is  a  maxim 
that  ^' in  pari  delicto  melior  est  conditio  defendentis."  But 
it  is  otherwise  where  the  contract  remains  executory,  for 
its  illegality  would  be  admissible  as  a  defence  at  law,  and 
the  decree  for  cancelling  is  only  an  equitable  mode  of 
rendering  that  defence  effectual. 

*The  ordinary  instances  of  fraud  are  the  procuring  r^y-\ 
contracts  to  be  made,  or  acts  to  be  done,  by  means 
of  wilful  misrepresentation,  either  express  or  implied,  and 
the  procuring  them  to  be  made  or  done  by  persons  under 
duress  or  incapacity.  The  same  principle  which  vitiates 
a  contract  with  an  incapacitated  person,  is  extended  in 
equity  to  avoid  benefits  obtained  by  trustees  from  their 
cestuis  que  trustent,  or  by  other  persons  sustaining  a  fidu- 
ciary character  from  those  in  regard  to  whom  that  char- 
acter exists.  And  there  is  a  similar  equity,  though  per- 
haps less  obviously  founded  on  principle,  for  setting  aside 
bargains  made  with  expectant  heirs  and  reversioners  with- 
out the  knowledge  of  the  parent  or  other  ancestor,  partly 
as  having  been  made  under  the  pressure  of  necessity,  but 
chiefly  as  being  a  fraud  on  the  parent  or  ancestor,  who  is 
misled  in  disposing  of  his  estate. 

The  ignorance  or  mistake  which  will  authorize  relief  in 
equity  must  be  an  ignorance  or  mistake  of  material  facts ; 
as,  for  example,  where  an  instrument  is  executed,  not  by 
way  of  releasing  or  compromising  a  particular  right,  but 
in  ignorance  or  mistake  of  the  facts  which  originate  the 
right.  If  the  facts  are  known,  but  the  law  is  mistaken, 
the  same  rule  applies  in  equity  as  at  law,  viz.,  that  a  mere 


32  ADAMS's    DOCTRINE    OF    EQUITY. 

mistake  of  law,  where  there  is  no  fraud  or  trust,  is  imma- 
terial. In  addition  to  the  jurisdiction  for  setting  aside 
contracts  on  the  ground  of  mistake  by  the  parties,  there 
is  a  jurisdiction  to-  set  aside  awards  for  miscarriage  in  the 
arbitrators,  where  the  fact  of  such  miscarriage  does  not 
appear  on  the  award. 

The  equity  for  rescission  which  has  been  just  stated, 
may  be  effectuated,  not  only  by  cancellation  of  an  instru- 
ment, or  by  re-conveyance  of  property  which  has  been 
unduly  obtained,  but  also  by  injunction  against  suing  at 
law  on  a  vitiated  contract,  or  against  taking  other  steps 
to  complete  an  incipient  wrong.  The  right,  however,  to 
relief  by  injunction,  is  not  confined  to  this  equity,  but 
extends  to  all  cases  where  civil  proceedings  have  been 
commenced  before  the  ordinary  tribunals  in  respect  of  a 
dispute  which  involves  an  equitable  element,  or  where  any 
act  not  criminal  is  commenced  or  threatened,  by  which 
any  equity  would  be  infringed.  The  restraint  may  be 
either  imposed  by  a  final  decree,  forbidding  the  act  inper- 
petiium  on  establishment  of  the  adverse  right,  or  by  inter- 
locutory writ,  forbidding  it  pro  tempore  whilst  the  right  is 
in  litigation. 

The  injunction  against  proceeding  in  another  Court, 
where  equitable  elements  are  involved  in  the  dispute,  is 
p^,..-|  commonly  issued  *in  regard  to  actions  at  law,  and 
is  obtainable  as  of  course  within  a  short  period 
after  the  commencement  of  a  suit,  so  as  to  restrain  the  pro- 
ceedings at  law  until  an  answer  is  filed.  If  the  answer 
show  the  existence  of  an  equitable  question,  such  ques- 
tion will  be  preserved  intact  until  the  hearing  of  the 
cause,  by  continuing  the  injunction,  either  absolutely  or 
in  a  modified  form,  until  that  time.  If  at  the  hearing 
the  decision  is  with  the  plaintiff  in  equity,  the  injunction 


INTRODUCTION.  33 

may  be  made  perpetual.  The  same  jurisdiction  exists  in 
regard  to  proceedings  in  the  Ecclesiastical  and  Admiralty 
Courts,  and  even  to  proceedings  in  the  courts  of  foreign 
and  independent  countries,  when  the  parties  are  person- 
ally within  the  jurisdiction  of  the  Court  of  Chancery. 
But  it  does  not  extend  to  proceedings  in  courts  which  are 
of  equal  competency  to  adjudicate  on  the  equity. 

The  relief  by  injunction  against  proceedings  at  law  is 
also  applied  under  a  distinct  equity  on  bills  of  peace  and 
bills  of  interpleader.  A  bill  of  peace  is  a  bill  filed  for 
securing  an  established  legal  title  against  the  vexatious 
recurrence  of  litigation,  whether  by  a  numerous  class  of 
claimants  insisting  on  the  same  right,  or  by  an  individual 
reiterating  an  unsuccessful  claim ;  and  its  equity  is,  that 
if  the  right  be  established  at  law,  it  is  entitled  to  adequate 
protection.  A  bill  of  interpleader  i^  a  bill  filed  for  the 
protection  of  a  person  from  whom  several  persons  claim 
legally  or  equitably  the  same  thing,  debt  or  duty,  but 
who  has  not  incurred  an  independent  liability  to  any  of 
them,  and  who  does  not  himself  claim  an  interest  in  the 
matter.  Its  equity  is,  that  the  conflicting  claimants 
should  litigate  the  matter  amongst  themselves,  without 
involving  the  stakeholder  in  their  dispute. 

The  injunction  against  an  act  commenced  or  threatened, 
by  which  an  equity  may  be  infringed,  is  often  used  as  an 
auxiliary  process  in  respect  of  ordinary  equities.  But 
there  is  one  class  of  cases  in  which  the  necessity  for  in- 
junctive relief  constitutes  'per  se  an  independent  equity, 
viz.,  that  of  torts,  as  a  class  of  civil  wrongs,  distinct  from 
cases  of  trust,  of  contracts,  and  of  fraud.  The  principle 
of  injunctive  relief  against  a  tort  is,  that  wherever  dam- 
age is  caused  or  threatened  to  property,  admitted  or 

legally  adjudged  to  be  the  plaintiff's,  by  an  act  of  the 
3 


^ 


34  ADAMS's    DOCTRINE    OF    EQUITY. 

defendant,  admitted  or  legally  adjudged  to  be  a  civil 
wrong,  and  such  damage  is  not  adequately  remediable  at 
law,  the  .inadequacy  of  the  remedy  at  law  is  a  sufficient 
equity  and  will  warrant  an  injunction  against  the  com- 
raty-]  mission  or  continuance  of  the  wrong.  *And  though 
damages  cannot  be  given  in  equity  for  the  plain- 
tiff's loss,  yet  if  the  defendant  has  made  a  profit,  he  will 
be  decreed  to  account.  The  equity  is  not  confined  in 
principle  to  any  particular  acts ;  but  those  in  respect  of 
which  it  is  most  commonly  enforced  are  waste,  destruc- 
tive trespass,  nuisance,  infringement  of  patent  right,  and 
infringement  of  copyright. 

The  equities  under  the  second  head  of  our  division, 
viz.,  where  the  courts  of  ordinary  jurisdiction  cannot  ad- 
minister a  right,  are  those  for  investigation  of  accounts ; 
for  severance  of  co-tenancies,  and  other  analogous  relief; 
for  winding  up  partnerships  and  administering  testamen- 
tary assets;  for  adjusting  liabilities  under  a  common 
charge ;  and  for  protection  of  the  persons  and  estates  of 
infants,  idiots,  and  lunatics. 

The  jurisdiction  over  account  is  exercised  in  a  two-fold 
form ;  first,  for  compelling  an  account  from  an  agent  or 
steward,  or  any  person  whose  duty  it  is,  by  reason  of  his 
character,  position,  or  office,  to  render  an  account,  and 
who  has  failed  to  do  so ;  and,  secondly,  for  investigating 
mutual  accounts  where  items  exist  on  both  sides,  not 
constituting  mere  matters  of  set-off,  but  requiring,  in 
order  to  ascertain  the  balance,  a  more  complicated  ac- 
count than  can  practically  be  taken  at  law.    ^ 

The  equity  for  severance  of  co-tenancy  and  other  analo- 
gous relief,  originates  in  the  fact  that  the  co-tenants  have 
a  rightful  unity  of  possession,  and  that  its  severance  can- 
not be  adequately  affected  at  law.     It  is  most  frequently 


INTRODUCTION.  35 

applied,  in  effecting  partition  between  co-parceners,  joint- 
tenants,  or  tenants  in  common.  But  its  principle  extends 
to  suits  by  a  widow  against  the  heir  for  assignment  of 
dower,  and  to  suits  by  a  tithe-owner  against  the  tithe- 
payer  for  relief  against  subtraction  or  non-payment  of 
tithes ;  for  in  the  one  case  the  heir  is  rightfully  in  pos- 
session of  the  entirety,  and  ought  himself  to  make  the 
assignment ;  in  the  other,  the  tithe-payer  is  rightfully  in 
possession  of  the  produce,  and  ought  himself  to  set  apart 
the  tithe.  There  is  also  an  equity  for  ascertainment  of 
boundary  between  the  estates  of  independent  proprietors 
where  the  confusion  has  arisen  by  the  defendant's  fault, 
and  for  compelling  payment  of  rents  where  by  confusion 
of  boundaries  or  other  cause,  the  remedy  by  distress  is 
gone  without  default  in  the  plaintiff. 

The  equity  for  winding  up  the  business  of  a  partner- 
ship originates  in  the  peculiar  character  of  that  relation- 
ship, as  involving  not  merely  *a  community  of  p^,.  -• 
interest,  but  the  employment  of  a  common  stock 
in  some  common  undertaking  with  a  view  to  a  common 
profit.  In  order  to  ascertain  this  common  profit,  and  the 
share  of  each  individual  partner  therein,  an  account  must 
be  taken  of  the  business,  the  assets,  and  the  liabilities. 
The  incapacity  of  the  Courts  of  law  to  take  this  account, 
confers  a  jurisdiction  on  the  Court  of  Chancery,  so  that 
if  the  partnership  has  been  already  dissolved,  or  if  there 
be  misconduct  or  incompetency  in  either  partner  sufficient 
to  ^Varrant  its  dissolution,  a  bill  will  lie  to  have  the  assets 
converted  into  money,  the  debts  discharged  out  of  their 
produce,  and  the  surplus  distributed  among  the  partners, 
or  the  deficiency  made  good  by  contribution  among  them, 
and  a  receiver  appointed  in  the  meantime  to  manage  the 
business.     If,  after  a  partnership  has  been  dissolved  by 


86  ADAMS's    DOCTRINE    OF    EQUITY. 

death  or  bankruptcy,  the  assets  are  used  by  the  surviving 
or  solvent  partner  for  the  purposes  of  profit,  he  is  in  the 
same  position  as  any  other  fiduciary  holder  of  property, 
using  it  for  his  own  benefit,  and  is  liable  to  account  to 
the  executors  or  assignees  for  the  profit  which  he  has 
made.  There  is  also  a  special  equity  in  the  case  of  mines 
and  collieries,  to  deal  with  them  on  the  footing  of  a  quasi 
partnership,  so  that  where  the  co-owner  cannot  agree  on 
the  management,  a  receiver  may  be  appointed  over  the 
whole. 

The  equity  for  administering  the  assets  of  a  testator  or 
intestate,  does  not  authorize  the  Court  of  Chancery  to  try 
the  validity  of  a  will.  The  jurisdiction  for  that  purpose 
in  regard  to  wills  of  personal  estate  belong  to  the  Eccle- 
siastical Courts,  and  in  regard  to  wills  of  real  estate  to 
the  Courts  of  common  law.  If,  however,  under  a  will  of 
real  estate,  there  is  a  trust  to  perform  or  assets  to  admin- 
ister, so  that  the  will  is  drawn  within  the  cognisance  of 
equity,  there  is  an  incidental  jurisdiction  to  declare  it 
established,  after  first  directing  an  issue  {devisavit  vel  non) 
to  try  its  validity  at  law. 

Assuming  the  title  of  representative  to  be  established, 
whether  that  of  an  executor  or  devisee,  or  that  of  an  ad- 
ministrator or  heir  there  is  an  equity  for  administering 
the  assets  of  a  testator  or  intestate  originating  in  the  in- 
efficiency of  the  ordinary  tribunals.  In  the  exercise  of 
this  equity  for  administration  of  assets,  all  such  assets  as 
would  be  recognised  at  law  are  termed  legal  assets,  and 
are  administered  in  conformity  with  legal  rules,  by  giving 
priority  to  debts  in  order  of  degree.  There  are  other 
assets,  recognised  in  equity  alone,  which  are  termed 
equitable  assets,  and  are  distributed  *among  the 
'-     -I     CTQdiiors,  pari  passu,  without  regard  to  the  quality 


INTRODUCTION.  37 

of  their  debts.  The  principal  assets  of  this  class  are  real 
estates  devised  for  or  charged  with  payment  of  debts,  and 
equities  of  redemption  on  forfeited  mortgages. 

The  manner  of.  administration  in  equity  is  on  a  bill, 
filed  either  by  creditors  or  by  legatees,  praying  to  have 
the  accounts  taken  and  the  property  administered  ;  or  if 
no  creditor  or  legatee  is  willing  to  sue,  then  by  the  exe- 
cutor himself,  who  can  only  obtain  complete  exoneration 
by  having  his  accounts  passed  in  chancery.  The  per- 
sonalty is  secured  by  payment  into  court;  a  receiver  of 
the  real  estate  and  of  the  outstanding  personalty  is  ap- 
pointed, if  the  circumstances  require  it ;  and  a  decree  is 
made  for  taking  the  accounts ;  all  actions  by  creditors  are 
stayed;  advertisements  are  issued  for  claimants  to  come 
in;  and  the  funds  are  ultimately  distributed  by  the 
court,  so  as  to  protect  the  representative  from  subsequent 
liability. 

The  equity  for  adjusting  liabilities  under  a  common 
charge  arises  where  a  charge  or  claim,  affecting  several 
persons,  is  or  may  be  enforced  in  a  manner,  not  unjust  in 
the  person  enforcing  it,  but  unjust  or  irregular,  as  be- 
tween the  parties  liable.  And  it  is  exercised  under  the 
three  forms  of  contribution,  exoneration,  and  marshalling. 
The  equities  of  contribution  and  exoneration  arise  where 
several  persons  are  bound  by  a  common  charge,  not  aris- 
ing ex  delicto,  and  their  order  of  liability  has  been  acci- 
dentally deranged.  If  the  liability  be  joint,  he  who  has 
paid  more  than  his  share  is  entitled  to  contribution  from 
the  rest.  If  some  are  liable  in  priority  to  the  rest,  the 
parties  secondarily  liable,  if  compelled  to  discharge  the 
claim,  are  entitled  to  exoneration.  Both  these  equities 
are  exemplified  in  the  case  of  suretyship ;  the  one  by  the 
rights  of  sureties  as  between  themselves ;  the  other  by 


38  Adams's  docteine  of  equity. 

their  rights  as  against  the  principal.  Their  enforcement 
in  equity,  instead  of  at  law,  is  advantageous,  because  the 
machinery  of  equity  is  in  general  best  fitted  for  such  en- 
forcement ;  and  more  especially  in  questions  of  contribu- 
tion, because  all  parties  can  be  united  in  a  single  suit, 
and  losses  caused  by  the  insolvency  of  any  can  be  distri- 
buted ratably  among  the  rest.  The  equity  of  marshalling 
arises  where  the  owner  of  property  subject  to  a  charge, 
has  subjected  it  (together  with  another  estate  or  fund) 
to  a  paramount  charge,  and  the  property  thus  doubly 
charged  is  inadequate  to  satisfy  both  claims.  Under 
these  circumstances,  there  is  an  equity  against  the  debtor 
|-5j.,  .-1  that  the  ^accidental  resort  of  the  paramount  cred- 
itor to  the  doubly  charged  estate  or  fund,  and  the 
consequent  exhaustion  of  that  security,  shall  not  enable 
him  to  get  back  the  second  property  discharged  of  both 
debts.  If,  therefore,  the  paramount  creditor  resort  to 
the  doubly  charged  estate,  the  puisne  creditor  will  be  sub- 
stituted to  his  right,  and  will  be  satisfied  out  of  that 
other  fund  to  the  extent  to  which  his  own  has  been  ex- 
hausted. 

The  equities  of  contribution,  exoneration,  and  marshal- 
ling, are  applied,  as  already  noticed,  in  the  administration 
of  assets,  to  rectify  disorders  which  may  incidentally 
occur ;  and  the  two  former  are  applied  where  debts  or 
legacies  are  charged  on  several  kinds  of  assets,  either 
pari  passu  or  successively ;  the  latter,  where  they  are 
charged,  some  on  several  kinds  of  assets,  and  some  on  one 
kind  only,  and  the  doubly  charged  assets  have  been 
applied  in  discharge  of  the  double  secured  claims. 

The  last  equity  which  remains  for  notice,  is  the  equity 
for  administering  the  estates  and  protecting  the  persons 
of  infants,  idiots,  and  lunatics. 


INTRODUCTION.  39 

.The  protection. of  an  infant's  person  and  estate  is  to 
some  extent  provided  for  by  the  right  of  guardianship,  and 
by  the -writs  of  habeas  corpus  and  of  account  at  law.  But 
this  protection  is  of  very  limited  extent,  and  is  far  from 
adequate  to  secure  a  proper  education  of  the  infant  and  a 
prudent  management  of  his  estate.  For  these  purposes 
there  is  a  prerogative  in  the  Crown  as  parens  patrice,  ex- 
ercised by  the  Court  of  Chancery,  for  protection  of  any 
infant  residing  temporarily  or  permanently  within  its 
jurisdiction.  The  jurisdiction  is  called  into  operation  by 
filing  a  bill,  which  constitutes  the  infant  a  ward  of  Court; 
and  such  wardship  is  attended  by  three  principal  inci- 
dents. Firstly,  the  infant  must  be  educated  under  the 
Court's  superintendence,  which  is  exercised  either  by  ap- 
pointment of  a  guardian  where  there  is  none,  by  a  general 
control  of  the  legal  guardian,  when  there  is  one  within 
the  jurisdiction,  or  by  displacement  of  the  legal  guardian, 
if  he  has  voluntarily  relinquished  his  right,  or  has  forfeited 
it  by  misconduct  tending  to  the  infant's  corruption.  Sec- 
ondly, the  estate  of  the  infant  must  be  managed  and 
applied  under  the  like  superintendence,  to  be  exercised 
either  by  appointment  of  a  receiver  when  there  are  no 
trustees,  or  by  a  general  control  of  the  trustees  where  they 
already  exist,  and  do  not  misconduct  themselves.  And 
in  the  exercise  of  such  superintendence,  an  adequate  part 
of  the  *income  will  be  allowed  for  maintenance  and  p^,  ..-i 
education,  provided  such  income  belong  absolutely 
to  the  infant,  and  the  allowance  be  for  his  benefit ;  but 
there  is  no  power  to  dispose  of  the  estate  itself,  except 
in  the  special  cases  of  partition  and  election,  and  of  the 
devolution  on  an  infant  of  a  mortgaged  estate,  and  in  the 
cases  where  it  is  expressly  conferred  by  statute.  Thirdly, 
the  marriage  of  the  infant  must  be  with  the  sanction  of 


40  ADAMS's    DOCTRINE    OF    EQUITY. 

the  Court.  And  such  sanction  will  only  be  given  on 
evidence  that  the  marriage  is  suitable,  and,  if  the  infant 
be  a  female,  on  a  proper  settlement  being  made. 

The  jurisdiction- to  protect  persons  under  mental  inca- 
pacity, is  of  an  analogous  origin  with  that  for  protection 
of  infants ;  and  extends  in  like  manner  to  all  persons, 
whether  subjects  of  the  Crown  or  not,  whose  persons  or 
property  are  within  the  local  limits  of  the  jurisdiction.  It 
differs,  however,  from  the  jurisdiction  in  infancy,  because 
the  Crown,  in  the  event  of  idiocy  or  lunacy,  has  not  a 
mere  authority  to  protect,  but  an  actual  interest  in  the 
land  of  the  idiot  or  lunatic,  determinable  on  his  recovery 
or  death.  If  the  owner  is  an  idiot,  the  profits  are  applied 
as  a  branch  of  the  revenue,  subject  merely  to  his  requisite 
maintenance  :  if  he  is  a  lunatic,  they  are  applied  on  trust 
for  his  support,  and  the  surplus  is  to  be  accounted  for  to 
himself  or  his  representatives.  The  effect  of  the  interest 
thus  vested  in  the  Crown  is  twofold ;  first,  that  a  special 
grant  is  required  for  its  administration,  and  consequently, 
that  such  administration  does  not  belong  to  the  Court  of 
Chancery,  but  is  conferred  on  the  Lord  Chancellor  person- 
ally by  warrant  from  the  Crown ;  and  secondly,  that  the 
mere  lunacy  does  not  originate  the  jurisdiction,  but  it  must 
be  inquired  of  by  a  jury  under  a  commission  from  the 
Great  Seal,  and  found  of  record. 

When  the  fact  of  lunacy  has  been  duly  established,  the 
custody,  of  the  estate  and  person  of  the  lunatic  is  granted 
by  the  Chancellor  to  committees,  with  a  proper  allowance 
for  maintenance.  On  the  subsequent  recovery  of  the 
lunatic,  the  commission  may  be  superseded;  and  on  his 
death,  the  power  of  administration  is  at  an  end,  and  the 
property  will  be  delivered  up  to  his  representatives. 

In  addition  to  the  prerogative  jurisdiction  in  equity. 


INTRODUCTION.  41 

there  are  other  jurisdictions  belonging  to  the  Court  of 
Chancery.  It  is  a  Court  of  State,  where  all  public  acts 
of  government  are  sealed  and  enrolled.  It  is  an  officina 
justiiicB  for  the  issuing  of  writs  under  the  Great  Seal,  e.g., 
writs  of  certiorari,  of  prohibition,  and  of  habeas  corpus, 
*as  well  as  the  original  writ  which  has  been  already  p^^,  ...-i 
noticed,  and  the  writs  of  subpoena  and  injunction, 
which  are  appropriated  to  the  equitable  jurisdiction  of  the 
Court.  It  has  a  common  law  jurisdiction  in  what  is  called 
the  Petty  Bag  Office,  the  chief  objects  of  which  are,  to 
hold  plea  on  scire  facias  to  repeal  letters-patent,  on  peti- 
tions of  right,  monstrans  de  droit,  traverses  of  office,  and 
the  like,  and  in  personal  actions  where  any  officer  or 
minister  of  the  Court  is  a  party.^  It  has  many  special 
jurisdictions  by  statute,  which  are  generally  directed  to 
be  exercised  by  summary  orders  on  petition,  instead  of 
the  more  regular  procedure  by  suit ;  e.  g.,  for  relieving 
summarily  against  breaches  of  charitable  trusts,  or  regu- 
lating their  administration,  for  effectuating  conveyances 
and  transfers  by  incapacitated  trustees  or  mortgagees, 
for  managing  property  belonging  to  infants, /(??w^s  covert, 
lunatics,  and  persons  of  unsound  mind,  and  for  a  variety 
of  miscellaneous  purposes,  depending  in  each  instance 
for  their  character  and  extent  on  the  language  of  the 
statute  in  which  they  originate.^  It  has  a  very  imports 
ant  jurisdiction,  also  of  statutory  origin,  under  the  law 
of  bankruptcy,  for  administering  the  property  of  an  insol- 
vent trader  in  his  lifetime,  in  order  to  the  satisfaction  of 
his  creditors  pari  passu,  and  for  discharging  the  debtor, 
after  full  surrender  of  his  property  and  conformity  with 
the  requisitions  of  the  law,  from  further  liability  for  his 

1  4  Inst.  79  ;  Rex  v.  Hare,  1  Str.  150;  3  Steph.  PI.  408-410;  1  Madd. 
C.  P.  book  i.  2  2  Dan.  C.  P.  Ch.  40. 


42  ADAMS's    DOCTRINE    OF    EQUITY. 

antecedent  debts.^  And  lastly,  it  has  a  jurisdiction  over 
the  solicitors  of  the  Court  for  the  summary  enforcement 
of  their  professional  duty,  including  the  delivery  of  papers 
and  payment  of  money  in  their  hands,  on  satisfaction  of 
their  claims  for  costs.^  The  consideration,  however,  of 
these  additional  jurisdictions  is  not  within  the  scope  of 
the  present  Treatise,  which  is  confined  to  the  prerogative, 
or  proper  equitable  jurisdiction. 

We  have  hitherto  been  considering  the  jurisdiction  in 
equity.  But  an  inquiry  still  remains  as  to  the  forms  of 
pleading  and  procedure  in  accordance  with  which  that 
r-i^y  -,  jurisdiction  is  exercised.  It  *is  obvious  that  in 
every  Court  some  forms  must  exist;  of  which 
the  character  will  be  determined  by  the  nature  of  the 
jurisdiction,  and  the  objects  which  it  is  principally  exer- 
cised to  attain.  In  accordance  with  this  view,  the  forms 
of  pleading  and  procedure  in  equity  are  directed  to  elicit- 

v/  ing  discovery  on  oath  from  the  defendant,  and  to  placing 
on  the  record  of  the  Court  a  full  and  clear  detail  of  facts 
on  which  the  equities  may  be  adjusted  by  a  decree. 

The  suit  is  commenced  by  filing  a  bill  of  complaint,  or 
if  the  claim  made  is  on  behalf  of  the  Crown,  an  informa- 
tion by  the  Attorney-General.     The  bill  or  information 

/  consists  of  five  principal  parts,  viz. :  the  statement,  the 
charges,  the  interrogatories,  the  prayer  for  relief,  and  the 
prayer  of  process.  The  statement  is  a  narrative  of  the 
plaintiff's  case  ;  and  it  is  essential  that  it  state  a  consistent 
case  on  behalf  of  all  the  plaintiffs,  and  that  it  state  such 
case  in  direct  terms,  with  reasonable  certainty,  and  with- 
out scandal  or  impertinence.     The  charges  are  generally 

1  6  Geo.  4,  c.  16,  and  1  &  2  Win.  4,  c.  56 ;  5  dc  6  Vict.  c.  122  ;  10  &  11 
Viet.  c.  102. 

2  6  &  7  Vict.  c.  73     1  Smith's  Ch.  Pr.  c.  3;  Beames  on  Costs,  pi.  2  ;  2 
Law  Review  317  ;  3  Id.  155,  319. 


INTRODUCTION.  43 

used  for  collateral  objects  ;  such,  for  example,  as  meeting 
an  anticipated  defence  by  matter  in  avoidance,  or  by  in- 
quiries to  sift  the  truth;  giving  notice  of  evidence  which 
might  otherwise  operate  as  a  surprise;  and  obtaining  dis- 
covery as  to  matter  of  detail,  which  could  not  be  conve- 
niently introduced  in  the  statement.  The  interrogatories 
are  an  examination  of  the  defendant  on  oath.  The  prayer 
for  relief,  or  statement  of  the  relief  required,  must  stsate 
with  reasonable  clearness  what  relief  is  asked,  and  must 
not  combine  distinct  claims  against  the  same  defendant, 
or  unite  in  the  same  suit,  several  defendants,  some  of 
whom  are  unconnected  with  a  great  portion  of  the  case. 
If  the  prayer  is  objectionable  on  either  of  these  two  latter 
grounds,  the  bill  is  termed  multifarious.  The  prayer  of 
process  asks  that  a  writ  of  subpoena  may  issue,  directed 
to  the  parties  named  as  defendants,  and  requiring  them 
to  appear  and  answer  the  bill,  and  to  abide  by  the  decree 
when  made.  In  bills  for  discovery  or  to  perpetuate  tes- 
timony, the  words  "to  abide  by  the  decree"  are  omitted, 
as  well  as  the  prayer  for  relief.  If  any  other  writ  be 
required,  such  as  an  injunction,  a  ne  exeat,  or  a  certiorari, 
it  should  be  asked  for  in  the  prayer  of  process,  either 
singly,  or,  if  the  defendant  be  required  to  appear,  together 
with  the  writ  of  subpoena. 

The  persons  against  whom  process  is  asked  are  the  de- 
fendants to  *the  bill,  and  should  consist  of  all  per-  p^,  -, 
sons  interested  in  the  suit,  who  are  not  already 
joined  as  plaintiffs. 

With  respect  to  the  nature  of  the  interest  which  re- 
quires a  person  to  be  joined  in  a  suit,  there  is  of  course 
no  difficulty  as  to  persons  against  whom  relief  is  expressly 
asked;  but  with  respect  to  those  who  are  incidentally  con- 
nected with  the  relief  asked  against  others,  the  line  of 


44  ADAMS's    DOCTRINE    OF    EQUITY. 

demarcation  is  less  easy  to  draw.  The  interests,  how- 
ever, which  require  such  joinder  seem  generally  referable 
to  one  of  the  three  following  heads  :  first,  interests  in  the 
subject-matter,  which  the  decree  may  effect,  and  for  the 
protection  of  which  the  owners  are  joined;  secondly,  con- 
current claims  with  the  plaintiff,  which,  if  not  bound  by 
the  decree,  may  be  afterwards  litigated;  and  thirdly, 
liability  to  exonerate  the  defendant,  or  to  contribute  with 
him  to  the  plaintiff's  claim.  In  cases  where  the  persons 
thus  interested  are  too  indefinite  or  numerous  to  be  indi- 
vidually joined,  one  or  more  members  of  a  class  may  sue 
or  be  sued  on  behalf  of  the  whole,  provided  the  interest 
of  every  absent  member  in  the  claim  made  or  resisted,  is 
identical  with  that  of  the  members  who  are  personally 
before  the  Court. 

After  the  bill  has  been  filed,  it  is  next  requisite  that 
/  the  subpoena  should  be  served,  that  the  defendant  should 
V  enter  his  appearance,  and  that  after  appearing  he  should 
put  in  his  defence.  If  he  be  contumacious  and  refuse  to 
do  so,  his  disobedience  may  be  punished  as  a  contempt; 
and  the  plaintiff  is  enabled,  on  compliance  with  certain 
rules,  to  enter  an  appearance  for  him,  and,  on  continuance 
of  his  default,  either  to  take  the  bill  pro  confesso,  or  to 
put  in  a  formal  defence  in  his  name  and  proceed  to  sup- 
port the  bill  by  evidence. 

Assuming  that  the  defendant  is  not  contumacious,  his 
defence. may  be  made  in  four  forms,  those  of  disclaimer, 
^/demurrer,  plea,  or  answer.  And  any  two  or  more  of  these 
forms  may  be  combined,  provided  they  be  applied  to  dif- 
ferent parts  of  the  bill  and  their  respective  application 
be  distinctly  pointed  out. 

A  disclaimer  denies  that  the  defendant  has  any  interest 


INTRODUCTION.  46 

in  the  matter,  and  asks  that  he  may  be  dismissed  from 
the  suit. 

A  demurrer  submits  that  on  the  plaintiff's  own  show- 
ing his  claim  is  bad.  The  decision  on  a  demurrer  is  ob- 
tained by  setting  it  down  for  argument.  If  the  demurrer 
is  allowed  on  argument  the  suit  is  *at  an  end,  un-  p^,  .-, 
less  it  be  confined  to  a  part  of  the  bill,  or  the 
court  give  permission  for  the  plaintiff  to  amend.  If  it  is 
overruled,  the  defendant  must  make  a  fresh  defence  by 
answer,  unless  he  obtain  permission  to  avail  himself  of  a 
plea. 

A  plea  avers  some  one  matter  of  avoidance,  or  denies 
some  one  allegation  in  the  bill,  and  rests  the  defence  on 
that  issue.  The  former  class  of  pleas  are  termed  affirma- 
tive, the  latter  negative,  pleas.  There  is  also  a  third 
description  of  plea,  which  may  be  termed  the  anomalous 
plea,  and  which  is  applicable  when  the  plaintiff  has  an- 
ticipated a  legitimate  plea,  and  has  charged  an  equity  in 
avoidance  of  it ;  e.  g.,  when  having  stated  a  release  of  his 
original  equity,  he  charges  that  such  release  was  obtained 
by  fraud.  In  this  case,  the  release  or  other  original  de- 
fence may  be  pleaded  with  averments,  denying  the  fraud 
or  other  equity  charged  in  avoidance ;  and  the  term  ano- 
malous is  used,  because  it  does  not  tender  an  independent 
issue,  but  sets  up  anew  the  impeached  defence  with  aver- 
ments in  denial  of  the  impeaching  equity. 

The  adoption  of  the  negative  and  anomalous  plea  has 
introduced  a  peculiar  form  of  pleading,  called  a  plea  sup- 
ported by  an  answer.  It  often  happens,  where  a  negative 
plea  is  used,  that  the  bill  contains  allegations  in  evidence 
of  the  disputed  statement.  In  this  case  the  plea  of  its 
untruth  will  not  protect  from  discovery  of  matters  which 
would  prove  it  truej  and,  therefore,  these  allegations 


46  ADAM"S'S    DOCTRINE    OF    EQUITY. 

must  be  excepted  from  the  plea,  and  must  be  met  by  an 
answer  in  support.  In  all  instances  of  the  anomalous 
plea,  the  same  necessity  occurs,  for  such  a  plea,  though 
good  as  to  the  original  equity,  is  clearly  ineffectual  as  to 
the  equity  in  avoidance ;  and  that  equity,  therefore,  must 
not  only  be  denied  by  averments  in  the  plea,  so  as  to 
render  the  defence  complete,  but  must  in  respect  of  the 
plaintiff's  right  of  discovery,  be  the  subject  of  a  full 
answer  in  support. 

The  rules  of  pleading  applicable  to  a  plea  are,  that  it 
must  raise  a  single  issue,  and  that  its  averments  must 
have  the  same  certainty  as  in  a  plea  at  law.  It  is  also 
generally  requisite  to  the  validity  of  a  plea  that  it  be 
verified  by  the  defendant's  oath. 

The  decision  on  a  plea  is  obtained  in  two  ways  :  first, 
by  setting  it  down  for  argument  in  order  to  try  its  vali- 
dity ;  and,  secondly,  by  filing  a  replication  and  bringing 
the  cause  to  a  hearing  on  the  issue  tendered,  in  order  to 
determine  its  truth.  If  the  plea  is  overruled  on  argu- 
ment, the  defendant  must  answer ;  if  allowed,  its  validity 
P^,  ..-,  is  *established,  but  the  plaintiff  may  still  file  a 
replication,  and  go  to  a  hearing  on  the  question  of 
its  truth.  If  on  the  hearing  it  is  sustained  by  the  evi- 
dence, there. will  be  a  decree  for  the  defendant;  if  dis- 
proved, he  can  set  up  no  further  defence,  but  a  decree 
will  be  made  against  him. 

The  defence  by  answer  is  the  most  usual,  and  generally, 
the  most  advisable  course.  It  puts  on  the  record  the 
whole  case  of  the  defendant,  and  enables  him  to  use  all 
or  any  of  his  grounds  of  defence,  subject,  only  to  the  ne- 
cessity of  verifying  them  on  oath  ;  and  it  unites  with  this 
statement  of  the  defence  a  discovery  on  oath  as  to  the 
matters  alleged  in  the  bill.     Its  averments,  so  far  as  it  is 


INTRODUCTION.  47 

a  narrative  of  the  defendant's  case,  are  governed  by  the 
same  rules  as  those  of  a  bill,  viz.,  they  must  state  a  con- 
sistent case,  and  must  state  it  with  reasonable  certainty, 
and  without  scandal  or  impertinence.  In  so  far  as  it  con- 
sists of  discovery,  it  is  regulated  by  the  principles  which 
have  been  already  noticed  under  that  head  of  jurisdiction. 

After  the  answer  is  put  in,  the  next  question  which 
arises  regards  its  sufficiency,  viz.,  whether  the  defendant 
has  given  all  due  discovery.  If  he  has  not  done  so  the 
plaintiff  may  except,  stating  the  points  on  which  the 
answer  is  defective,  and  praying  that  a  sufficient  one  may 
be  enforced.  If  the  defendant  does  not  submit  to  the 
exceptions,  they  are  referred  to  one  of  the  Masters  for 
consideration,  and  if  he  reports  in  their  favor,  a  further 
answer  must  be  filed.  If  either  party  is  dissatisfied  with 
the  Master's  decision,  he  may  bring  the  question  before 
the  Court  by  exceptions  to  the  report ;  and  it  will  then 
be  finally  decided. 

The  next  step  is  the  amendment  of  the  bill.  The  ob- 
ject of  the  amendment  may  be  either  to  vary  or  add  to 
the  case  originally  made,  or  to  meet  the  defence  by  new 
matter.  If  the  amendment  make  fresh  discovery  requi- 
site, the  plaintiff  may  call  for  a  further  answer,  or  if  the 
defendant  considers  it  material  to  make  a  further  answer, 
he  may  do  so,  though  not  required  by  the  bill.  The 
right  of  amending  is  not  absolutely  confined  to  the  plain- 
tiff. The  defendant  may,  under  special  circumstances, 
obtain  a  similar  indulgence  by  getting  leave  to  file  a  sup- 
plemental answer ;  but  as  an  answer  is  put  in  on  oath, 
the  Court,  for  obvious  reasons,  will  not  readily  suffer 
alterations  to  be  made. 

The  final  result  of  the  pleadings  is,  that  the  original  or 
ultimately  ^amended  bill  and  the  answer  or  sue-  r^,  •.-i 
cessive  answers  of  the  defendant  constitute  the 


48  ADAMS'S    DOCTRINE    OF    EQUITY. 

whole  record.  The  plaintiff  may  then  either  set  down 
the  cause  for  hearing  on  bill  and  answer,  admitting  the 
answer  to  be  true  throughout,  or  if  he  controverts  any 
part  of  the  answer,  or  requires  additional  proof  of  his 
case,  may  file  a  short  general  form,  called  a  replication, 
stating  that  he  joins  issue  with  the  defendant. 

The  answer  of  the  defendant  is  the  chief  foundation  of 
interlocutory  orders,  that  is,  of  orders  not  made  at  the 
hearing  of  the  cause,  but  obtained  during  its  progress  for 
incidental  objects ;  and  such  orders,  therefore,  will  natu- 
rally fall  under  our  notice  at  this  stage  of  our  inquiry. 

The  mode  of  obtaining  interlocutory  orders  is  either  by 
a  viva  voce  application,  called  a  motion ;  or  by  a  written 
one,  called  a  petition.  The  statements  made  in  the  answer 
have  generally  a  considerable  influence  on  the  application, 
and  in  some  instances  they  are  the  only  admissible  evi- 
dence. Where  other  evidence  is  admitted  it  is  brought 
forward,  not  by  the  regular  examination  of  witnesses,  but 
by  the  affidavits  of  voluntary  deponents. 

Applications  of  this  kind  are  made  for  a  variety  of  ob- 
jects ;  but  those  of  most  ordinary  occurrence,  and  which 
alone  seem  material  to  be  noticed,  are  six  in  number,  viz.. 
First,  production  of  documents,  when  documents  are  ad- 
mitted to  be  in  the  defendant's  possession,  and  to  be  capa- 
ble of  affording  discovery  to  which  the  plaintiff  is  entitled. 
Secondly,  payment  into  Court,  when  the  defendant  admits 
money  to  be  in  his  hands,  which  he  does  not  claim  as  his 
own,  and  in  which  he  admits  that  the  applicant  is  inter- 
ested. Thirdly,  for  a  receiver,  where  no  competent  per- 
son is  entitled  to  hold  the  property,  or  the  person  so 
entitled  is  in  the  position  of  a  defaulting  trustee ;  or  even 
where  an  adverse  title  is  claimed,  if  gross  fraud  or  immi- 
nent danger  be  shown.    Fourthly,  an  injunction  to  restrain 


INTRODUCTION.  49 

a  defendant,  so  long  as  the  litigation  continues,  from  doing 
acts  productive  of  permanent  injury,  or  from  proceeding 
in  an  action  at  law,  where  an  equity  is  alleged  against  his 
legal  right.  Fifthly,  a  writ  of  ne  exeat,  in  the  nature  of 
equitable  bail,  to  restrain  a  defendant  from  quitting  the 
kingdom ;  and  sixthly,  a  preliminary  reference  to  the 
Master,  where  accounts  or  inquiries  are  requisite  before 
the  cause  can  be  decided,  which  cannot  be  conveniently 
taken  or  made  by  the  court. 

*The  next  regular  step  after  replication  is  that  r-.^.  .  -. 
the  parties  should  prove  their  cases  by  evidence. 

The  general  rules  of  evidence  are  the  same  in  equity 
as  at  law,  but  the  manner  of  taking  it  is  different.  The 
difference  in  this  respect  arises  from  the  difference  of  the 
object  in  view.  The  object  at  law  is  to  enable  the  jury 
to  give  their  verdict.  And  for  this  pui*pose  it  is  essential 
that  the  evidence  be  taken  viva  voce  and  publicly,  so  that 
conflicting  testimony  may  be  compared  and  sifted.  In 
equity,  the  object  is  to  elicit  a  sworn  detail  of  facts  on 
which  the  court  may  adjudge  the  equities,  and  to  preserve 
it  in  an  accurate  record,  for  the  use,  if  needed,  of  the 
appellate  court. 

For  this  reason  the  evidence  in  equity  is  taken  in 
writing,  by  examination  or  interrogatories  previously  pre- 
pared. And  in  order  to  avoid  the  risk  of  defects  being 
discovered  in  the  course  of  taking  it,  and  false  evidence 
procured  to  remedy  them,  it  is  taken  secretly  by  an 
officer  of  the  court,  and  no  portion  is  disclosed  until  the 
depositions  are  complete,  and  the  time  arrives  for  publi- 
cation of  the  whole. 

After  the  depositions  have  been  published  and  read,  no 
further  evidence  is  admissible  without  special  leave,  ex- 
cept evidence  to  discredit  a  witness,  either  by  impeaching 


50  ADAMS's     DOCTRINE     OF    EQUITY. 

his  general  credibility  or  by  showing  him  to  have  sworn 
falsely  in  a  part  of  his  evidence,  not  material  to  the  issue 
in  the  cause.  With  respect  to  the  material  parts  of  his 
evidence,  such  discretionary  evidence  is  not  admissible, 
lest  under  the  pretence  of  impeaching  his  credibility  new 
evidence  should  be  introduced. 

The  only  exceptions  to  the  system  of  taking  evidence 
on  written  interrogatories  and  before  publication  are,  in 
the  case  of  documents  in  the  custody  of  a  public  officer, 
and  of  documents,  the  authenticity  of  which  is  not  im- 
peached, and  which  require  only  the  proof  of  hand-writing 
or  the  evidence  of  an  attesting  witness.  This  evidence 
may  be  given  by  affidavit  at  the  hearing. 

At  the  hearing  of  the  cause  the  pleadings  and  evidence 
are  stated,  and  the  court  either  makes  a  final  decree,  or, 
if  any  questions  are  involved  which  the  evidence  does 
not  satisfactorily  determine,  it  eliminates  them  from  the 
general  statement,  and  provides  for  their  determination 
by  a  preliminary  decree. 

The  causes  which  create  a  necessity  for  a  preliminary 

decree  are  four  in  number,  viz.,  1.  That  in  the  course  of 

the  suit  a  dispute  has  arisen  on  a  matter  of  law,  which  the 

Vj^t  -1  court  is  unwillino;  to  decide  ;  *2.  That  a  similar 
PlxvJ      .  .    °  ' 

dispute  has  arisen  on  a  matter  of  fact ;  3.  That 
the  equity  claimed  is  founded  on  an  alleged  legal  right, 
the  decision  of  which  the  Court  of  Chancery  declines  to 
assume ;  and  4.  That  there  are  matters  to  be  investigated 
<which,  although  within  the  province  of  the  court,  are 
S^ch  ^s  the  presiding  Judge  can  not  at  the  hearing  effect- 
ually deal  with.  The  machinery  for  obviating  these  im- 
pediments is  that  of  a  preliminary  decree,  directing,  1.  A 
case  for  a  court  of  law ;  2.  An  issue  for  a  jury ;  3.  An 
action  at  law,  to  be  determined  in  the  ordinary  course ; 


INTRODUCTION.  51 

or  4.  A  reference  to  one  of  the  Masters  of  the  Court  to 
acquire  and  impart  to  it  the  necessary  information. 

Directions  for  a  case,  an  issue,  or  an  action,  are  rather 
transfers  to  another  tribunal  than  steps  of  procedure  in 
the  Court  itself;  but  a  reference  to  the  Master  is  an 
ordinary  step  in  the  cause,  and  is  directed  principally  to 
three  objects,  viz.,  1.  To  the  protection  of  absent  parties 
against  the  possible  neglect  or  malfeasance  of  the  liti- 
gants ;  2.  To  the  more  effectual  working  out  of  details, 
which  the  Judge  sitting  in  Court  is  unable  to  investi- 
gate ;  and  3.  To  the  supplying  defects  or  failures  in 
evidence. 

The  mode  of  conducting  a' reference  is  by  written  state- 
ments and  counter-statements,  which  are  supported  either 
by  affidavits,  by  depositions,  or  by  viva  voce  testimony. 
When  the  evidence  is  complete,  the  Master  prepares  a 
draft  report,  and  it  is  the  duty  of  any  dissatisfied  party 
to  lay  before  him  written  objections,  specifying  the  points 
in  which  he  considers  it  erroneous.  If  this  is  not  done, 
he  cannot  afterwards  contest  the  correctness  of  the  report. 

When  the  Master  has  disposed  of  all  objections,  and 
come  to  a  conclusion  on  the  matters  referred,  he  settles 
and  signs  his  report,  and  such  report  is  then  fikd. 

If  any  of  the  persons  interested,  whether  actual  or 
quasi  parties,  are  dissatisfied  with  the  report,  they  may 
file  written  exceptions,  founded  on  the  objection  previ- 
ously taken,  and  specifying  the  alleged  errors  and  the 
corrections  proposed.  The  exceptions  are  then  heard  and 
determined  by  the  Court. 

When  the  exceptions  have  been  disposed  of,  and  the 
report  confirmed,  the  cause  is  heard  on  further  directions, 
and  the  costs  are  generally  disposed  of,  at  the  same  time. 
If  the  nature  of  the  case  made  on  the  report  involves  the 


52  ADAMS's    DOCTRINE    OF    EQUITY. 

necessity  of  new  inquiries,  a  reference  is  again  made, 
p,     .-,   and  further  directions  are  again  reserved,  *and 
the  same  process  is  from  time  to  time  repeated 
until  a  final  decree  is  made. 

The  power  to  compel  obedience  to  the  decree,  like  that 
for  enforcing  appearance  or  answer,  was  originally  confined 
to  process  of  contempt ;  and  the  party  against  whom  the 
decree  was  made  was  exposed  to  have  his  person  impris- 
oned and  his  goods  sequestered  as  a  punishment  for  dis- 
obedience; but  if  he  still  continued  contumacious,  he 
could  not  be  forced  to  perform  the  decree.  By  the 
statutes  of  1  Wm.  4,  c.  36,  and  1  &  2  Vict.  c.  110,  this 
inconvenience  has  been  to  some  extent  remedied,  and  the 
Court  is  enabled  to  direct  an  execution  of  instruments  by 
another  person  in  the  name  of  the  contumacious  party,  to 
take  possession  of  documents  in  his  hands  which  he 
refuses  to  deliver  up,  and  to  levy  moneys  out  of  his  pro- 
perty by  writ  of  execution.  Where  none  of  these  reme- 
dies can  be  adopted,  as  where  the  act  ordered  requires 
the  personal  agency  of  the  defendant,  the  Court  is  remitted 
to  the  process  of  contempt,  and  can  only  enforce  its  decree 
by  imprisonment  and  sequestration. 

The  next  subject  for  consideration  after  the  decree  is 
the  jurisdiction  for  alteration  or  reversal,  and  it  should  be 
observed  that  the  jurisdiction  for  this  purpose  is  not  con- 
fined, as  to  law,  to  the  final  judgment,  but  extends  to  in- 
terlocutory proceedings  in  the  cause. 

A  decree,  when  made,  is  not  perfected  until  enrolment ; 
and  therefore,  so  long  as  it  continues  unenroUed,  it  may 
be  altered  on  a  rehearing  before  the  same  jurisdiction, 
viz.,  either  before  the  Judge  who  originally  made  it,  or 
before  the  Lord  Chancellor  as  the  head  of  the  court. 


INTRODUCTION.  53 

After  enrolment  it  is  a  conclusive  decree,  and  can  only 
be  altered  on  appeal. 

For  the  purpose  of  such  appeal  there  is  a  twofold  juris- 
diction :  first,  in  the  King,  whose  conscience  is  ill  admin- 
istered, and  who  may  issue  a  special  commission  pro  re 
nata  to  reconsider  his  Chancellor's  decree;  and,  secondly, 
in  the  House  of  Lords,  on  petition  to  them  as  the  supreme 
judicature  of  the  realm.  The  former  of  these  courses, 
however,  is  now  disused,  and  the  latter,  which  at  one  time 
was  the  subject  of  vehement  contention,  has  practically 
superseded  it. 

In  the  observations  which  have  been  hitherto  made  on 
procedure  in  equity,  three  things  have  been  assumed,  viz., 
first,  that  a  decree  on  the  plaintiff's  bill  will  determine  the 
litigation;  secondly,  that  the  bill  is  properly  framed  in  the 
outset  for  obtaining  that  decree;  and  *thirdly,  p^j.^  ..-, 
that  the  suit  is  conducted  to  its  termination 
without  interruption  or  defeat.  It  is  obvious  that  these 
assumptions  cannot  always  be  correct,  and  it  is  therefore 
requisite,  before  quitting  the  subject,  to  consider  the  means 
for  remedying  the  imperfections  which  occur. 

The  first  class  of  imperfection  is  where  a  decree  on  the 
plaintiff's  bill  will  not  determine  the  litigation.  This  may 
arise  either  from  cross-relief  or  discovery  being  required 
by  the  defendants,  or  from  the  existence  of  litigation  be- 
tween co-defendants.  In  either  case  the  imperfection  is 
remedied  by  one  or  more  cross  bills,  filed  by  one  or  more 
of  the  defendants  against  the  plaintiff  and  against  such 
of  their  co-defendants,  as  the  cross  relief  may  affect.  If 
this  has  not  been  done,  and  the  difficulty  appears  at  the 
hearing,  the  cause  may  be  directed  to  stand  over  for  the 
purpose.  A  cross  bill  may  also  be  filed  to  answer  the 
purpose  of  a  plea  puis  darrein  continuance  where  a  new 


64  ADAMS's    DOCTRINE     OF    EQUITY. 

defence  arises  after  answer,  but  not  for  the  purpose  of  in- 
directly altering  the  answer  itself. 

The  second  class  of  imperfection  is  where  the  bill  is 
framed  improperly  at  the  outset.  This  ought  regularly  to 
be  rectified  by  amendment,  but  if  the  time  for  amendment 
has  elapsed,  it  may  be  rectified  by  a  supplemental  bill,  or 
by  a  bill  in  the  nature  of  supplement,  the  character  of 
which  will  be  considered  under  the  next  head. 

Imperfections  of  the  third  class  are  those  which  origi- 
nate in  an  interruption  or  defect  subsequent  to  the  insti- 
tution of  the  suit,  and  they  are  rectified,  according  to 
circumstances,  by  a  bill  of  revivor,  or  in  the  nature  of 
revivor,  and  by  bill  of  supplement,  or  in  the  nature  of 
supplement. 

Interruptions  of  a  suit  are  called  abatements,  and  are 
cured  by  a  bill  of  revivor,  or  in  nature  of  revivor.  They 
occur  on  the  death  of  any  litigating  party,  whose  interest 
or  liability  does  not  either  determine  on  death  or  survive 
to  some  other  litigant,  and  on  the  marriage  of  a  female 
plaintiff  or  co-plaintiff.  If  the  interest  or  liability  be 
transmitted  by  act  of  law,  viz.,  to  a  personal  representa- 
tive or  heir,  or  to  the  husband  of  a  married  plaintiff,  the 
abatement  is  cured  by  a  bill  of  revivor,  followed  by  an 
order  on  motion  to  revive.  If  the  transmission  is  by  act 
of  the  party,  viz.,  to  a  devisee,  the  bill  is  one  in  nature  of 
revivor,  and  requires  a  decree  at  the  hearing  to  revive. 

Defects  in  a  suit  subsequent  to  its  institution  may  be 
psj.,  ...-•  caused  either  *in  respect  of  parties,  by  the 
transfer  of  a  former  interest,  or  the  rise  of  a 
new  one,  or  in  respect  of  issues  between  the  existing 
parties,  by  the  occurrence  of  additional  facts,  and  they 
are  cured  by  bill  of  supplement,  or  in  the  nature  of  a 
supplement. 


INTRODUCTION.  55 

Where  an  existing  interest  has  been  transferred,  the 
transferee  is  bound  by  the  previous  proceedings,  and  may- 
be introduced  into  the  suit  by  a  supplemental  bill,  stating 
the  transfer,  and  praying  his  substitution  for  the  trans- 
feror. Where  a  new  interest  has  arisen,  as  on  the  birth 
of  a  tenant  in  tail,  he  must  be  added  by  a  bill  in  the 
nature  of  a  supplement,  restating  the  case  against  him, 
and  praying  an  independent  decree. 

With  respect  to  the  occurrence  of  additional  facts,  it 
must  be  observed,  that  if  they  intended  to  establish  a 
new  title  in  the  plaintiff,  they  are  not  admissible  at  all, 
for  he  must  stand  or  fall  by  the  title  which  he  had  at  the 
outset.  If  they  are  mere  evidence  of  his  original  title,  it 
seems  that  their  introduction  on  the  pleadings  is  not  re- 
quired, but  that  the  proper  course  is  to  apply  for  liberty 
to  examine  witnesses,  and  to  have  the  deposition  read  at 
the  hearing.  But  if  the  new  facts  are  such  as,  leaving 
the  original  equity  untouched,  vary  the  form  of  relief,  or 
create  a  necessity  for  additional  relief,  they  are  regularly 
admissible  in  the  suit.  And  being  subsequent  to  the  filing 
of  the  bill,  and  therefore  not  properly  matters  of  amend- 
ment, they  are  introduced  by  supplemental  bill. 

If  new  matter  occurs,  or  is  discovered  after  the  hearing, 
it  is  not  properly  matter  of  supplement,  but  may  be  intro- 
duced into  the  cause,  if  necessary,  by  a  bill  expressly 
framed  for  the  purpose,  and  called  a  bill  to  execute  or  to 
impeach  the  decree. 

A  bill  to  execute  a  decree  is  a  bill  assuming  as  its  basis 
the  principle  of  the  decree,  and  seeking  merely  to  carry 
it  into  effect. 

A  bill  to  impeach  a  decree,  is  either  a  bill  of  review,  a 
supplemental  bill  in  the  nature  of  review,  an  original  biU 


56  ADAMS's    DOCTRINE    OF    EQUITY. 

of  the  same  nature,  or  an  original  bill  on  the  ground  of 
fraud. 

A  bill  of  review  is  used  to  procure  the  reversal  of  an 
enrolled  decree,  and  may  be  brought  either  on  error  of 
law  apparent  on  the  decree,  or  on  the  occurrence  or  dis- 
covery of  new  matter.  If  it  proceed  on  the  latter  ground, 
the  leave  of  the  Court  must  be  first  obtained. 

A  supplemental  bill  in  the  nature  of  review  is  used  to 
procure  the  reversal  of  a  decree  before  enrolment,  on  the 
P^j.,  •  -j  occurrence  or  *discovery  of  new  matter,  and  must 
be  filed  by  leave  of  the  Court.  The  manner  of 
procedure  on  such  a  bill  is  to  petition  for  a  rehearing  of 
the  cause,  and  to  have  it  heard  at  the  same  time  on  the 
new  matter.  If  the  ground  of  complaint  be  error  ap- 
parent, it  may  be  corrected  on  a  rehearing  alone,  and  a 
supplemental  bill  is  unnecessary. 

An  original  bill  in  the  nature  of  review  is  applicable 
when  the  interest  of  a  party  seeking  a  reversal  was  not 
before  the  Court  when  the  decree  was  made,  and  it  may 
be  filed  without  obtaining  leave  from  the  Court. 

We  have  now  concluded  our  introductory  inquiry  into 
the  jurisdiction,  the  pleadings,  and  the  procedure  of  the 
Court  of  Chancery.  The  treatise  itself  will  be  occupied 
in  filling  up  the  outline  which  has  been  drawn,  and  in 
presenting  a  detailed  examination  of  the  doctrines  which 
have  been  already  stated  in  their  general  effect. 


BOOK  I. 

OF  THE  JURISDICTION  OF  THE  COURTS  OF  EQUITY  AS  RE- 
GARDS THEIR  POWER  OF  ENFORCING  DISCOVERY. 


CHAPTER   I. 

OF  DISCOVERY. 

The  jurisdiction  of  the  Courts  of  equity  for  the  enforce- 
ment of  civil  rights,  as  distinguished  from  the  jurisdiction, 
of  the  Courts  of  common  law,  derives  much  of  its  utility 
from  the  power  of  the  Great  Seal  to  compel  the  defendant 
in  a  suit  to  discover  and  set  forth  upon  oath  every  fact 
and  circumstance  within  his  knowledge,  information,  or 
belief,  material  to  the  plain tiif's  case. 

This  right  to  enforce  Discovery^  as  it  is  called,  does  not 
exist  in  the  Courts  of  common  law.^  In  those  Courts  the 
plaintiff  must  make  out  his  case  by  the  evidence  of  wit- 
nesses, or  the  admissions  of  the  defendant.  By  this  right, 
more  effectual  means  of  ascertaining  the  truth  are  afforded 
to  plaintiffs  in  equity  than  in  the  Courts  of  *com-  ri^ey\ 
mon  law;   whilst  the  rights  of  the   defendant  are 

*  In  England,  in  the  United  States  Courts,  and  in  most  of  the  states,  the 
common  law  rule  has  been  altered,  and  parties  are  now  competent  and  com- 
pellable to  testify. 


58  ADAMS's     DOCTRINE    OF    EQUITY. 

equally  provided  for,  by  the  privilege,  in  his  turn,  of  re- 
quiring from  the  plaintiff,  by  a  cross  suit  (the  reconvention 
of  the  civil  law),  the  like  discovery  upon  oath  of  all  the 
circumstances  within  the  plaintiff's  knowledge. 

The  jurisdiction  thus  enforced  in  the  Courts  of  equity 
is,  at  the  same  time,  carefully  guarded,  so  that  it  may 
only  elicit  the  truth,  without  wrong  to  the  party  exam- 
ined. He  is  not  liable  to  be  examined  suddenly  and 
w^ithout  time  for  deliberation;  he  knows  from  the  bill  what 
are  the  objects  aimed  at;  he  has  the  plaintiff's  statement 
and  the  whole  of  the  interrogatories  before  him;  he  may 
give  a  modified  or  explanatory  answer ;  and  he  is  aided 
by  the  advice  of  counsel,  whose  duty  it  is  to  see  that 
everything  really  material  is  stated,  as  well  as  that  the 
record  of  the  Court  is  not  encumbered  with  irrelevant 
matter. 

The  Court  of  Chancery,  as  has  already  been  observed 
in  the  Introduction,  does  not,  in  requiring  discovery,  de- 
part from  the  general  policy  of  the  law.^     It  requires  a 

^  When  the  suitor  is  an  individual,  although  he  may  be  a  sovereign  of  a 
foreign  state  suing  in  his  capacity  as  sovereign,  yet  he  is  bound  to  answer 
to  a  cross  bill :  The  King  of  Spain  v.  Hallett,  6  Clark  &  F.  333  ;  and  to  an- 
swer upon  oath.  But,  as  the  right  of  a  plaintiflf  to  sue  does  not  depend 
upon  the  eflFectiveness  of  the  discovery  which  on  a  cross  bill  may  be  exacted 
from  him,  a  republic,  like  the  United  States,  for  example,  can  sue,  although 
no  effectual  discovery  could  be  had  from  it  on  a  cross  bill :  United  States 
V.  Wagner,  L.  R.  2  Ch.  Ap.  582.  But  a  suit  in  the  name  of  "  the  government 
of  the  State  of  Columbia"  is  too  vaguely  brought :  Columbian  Government 
V.  Rothschild,  1  Sim.  94,  Whether  the  executive  of  a  foreign  republic  can 
be  made  a  defendant  for  the  purpose  of  obtaining  discovery  on  a  cross  bill 
seems  to  be  doubtful.  See  Prioleau  v.  The  United  States,  L.  R.  2  Eq.  659  ; 
United  States  v.  Wagner  (supra).  The  proper  course  would  seem  to  be  for 
the  defendant  to  apply  to  the  republic  plaintiff  to  name  some  person  from 
whom  the  discovery  sought  for  may  be  obtained  ;  and  if  the  information 
is  refused,  the  Court  will  be  justified  in  staying  proceedings  in  the  suit 
until  the  defendant's  demand  is  complied  with :  United  States  v.  Wagner, 
per  Lord  Chelmsford. 


OF    DISCOVERY.  59 

defendant  to  discover  the  truth  of  the  plaintiff's  claim, 
notwithstanding  that  he  is  himself  the  party  sued ;  but 
it  does  not  require  him  to  answer  questions  which,  on 
grounds  of  general  policy,  he  is  entitled  to  resist.^  In 
accordance  with  this  principle  it  is  held,  first,  that  no 
man  need  discover  matters  tending  to  criminate  himself, 
or  to  expose  him  to  a  penalty  or  forfeiture ;  secondly,  that 
no  man  need  discover  legal  advice  which  has  been  given 
him  by  his  professional  advisers,  or  statements  of  facts 
which  have  passed  between  himself  and  them  in  reference 
to  the  dispute  in  litigation ;  and  thirdly,  that  official  per- 
sons cannot  be  called  on  to  disclose  any  matter  of  State, 
the  publication  of  which  may  be  prejudicial  to  the  com- 
munity. 

The  first  of  these  maxims  is,  that  "  no  man  need  dis- 
cover matters  tending  to  criminate  himself,  or  to  expose 
him  to  a  penalty  or  forfeiture."  He  has  a  right  to  refuse 
an  answer,  not  merely  as  to  the  broad  and  leading  fact, 
but  as  to  every  incidental  fact  which  may  form  a  link  in 
*the  chain  of  evidence,  if  any  person  should  choose  p^^q-i 
to  indict  him.  [ay 

(a)  East  India  Company  v.  Campbell,  1  Ves.  sen.  246 ;  Claridge  v.  Hoare, 
14  Ves.  59,  65 ;  Litchfield  v.  Bond,  6  Bea.  88 ;  Short  ».  Mercier,  3  Macn. 
&  Gord.  205. 

^  The  defendant  may  stop  at  any  point  in  his  answer,  and  defend  him- 
self on  the  ground  of  privilege,  notwithstanding  other  admissions  therein  : 
King  of  Sicilies  v.  Willcox,  1  Sim.  N.  S.  301. 

'  It  is  well  settled  in  the  United  States  that  a  defendant  in  a  Bill  in 
Chancery  is  not  bound  to  make  a  discovery  as  to  any  charge  of  felony 
against  him,  or  as  to  any  criminal  oflFence  involving  moral  turpitude  • 
United  States  v.  Saline  Bank,  1  Peters  100;  Northrop  v.  Hatch,  6  Conn* 
361 ;  Skinner  v.  Judson,  8  Conn.  528 ;  Hayes  v.  Caldwell,  5  Gillman  33  > 
Ocean  Insurance  Company  v.  Fields,  2  Story  59 ;  The  Union  Bank  v.  Barker, 
3  Barb.  Ch.  358;  Marshall  «.  Riley,  7  Geo.  367;  Poindexter  v.  Davis,  6 
Gratt.  481 ;  Stewart  v.  Drasha,  4  McLean  563  ;  Higdon  v.  Heard,  14  Geo. 


60  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  objectionable  nature  of  the  discovery  asked  ap- 
pears on  the  bill,  the  protection  may  be  claimed  by  de- 
murrer ;  as,  for  example,  if  the  bill  alleges  an  usurious 
contract,  maintenance,  champerty,  or  simony  ;^  or  again, 
if  it  be  filed  to  discover  whether  a  defendant  is  married, 
who  would  thereby  forfeit  an  estate  or  legacy,  or  to  dis- 
cover matter  which  would  subject  a  defendant,  entitled  to 
an  office  or  franchise,  to  a  quo  warranto,  {h) 

If  the  tendency  of  the  question  is  not  apparent  on  the 
bill,  the  defendant  may  take  the  objection  by  a  plea  set- 
ting forth  by  what  means  he  may  be  liable  to  punishment 
or  forfeiture,  and  may  insist  he  is  not  bound  to  answer 
the  bill,  or  so  much  thereof  as  the  plea  will  cover.     Thus 

(6)  Mitford  on  Pleading,  4th  edit.  193-197. 

255.  And  it  eeems  an  action  for  slander  is  in  the  nature  of  a  penal  action, 
and  comes  within  the  general  rule :  Bailey  v.  Dean,  5  Barb.  S.  C.  297.  So 
of  a  bill  to  set  aside  a  conveyance  on  the  ground  of  usury :  Masters  v. 
Prentiss,  2  Jones's  Eq.  62.  But  a  defendant  may  be  compelled  to  make  a 
discovery  of  any  act  of  moral  turpitude  which  does  not  amount  to  a  public 
offence  or  an  indictable  crime :  Watts  v.  Smith,  24  Miss.  77.  A  defendant 
is  not  privileged  against  discovery  because  it  will  expose  him  to  penalties 
in  a  foreign  country,  of  which  he  is  a  subject:  King  of  Two  Sicilies  v. 
Willcox,  1  Sim.  N.  S.  301.  As  a  corporation  is  not  in  general  liable  to 
indictment,  it  cannot  on  this  ground  resist  discovery :  Id.  334.  So  of  a 
trustee  in  a  bond  for  prospective  illicit  cohabitation,  who  is  not  himself  ex- 
posed to  criminal  prosecution :  Benyon  v.  Nettlefield,  3  Macn.  &  Gord.  94. 
And,  in  general,  that  discovery  will  subject  others  than  the  defendant  to 
penalty  or  forfeiture,  is  no  ground  of  protection :  King  of,  &c.  v.  Willcox, 
1  Sim.  N.  S.  301. 

An  Act  of  the  Legislature  which  compels  a  party  against  whom  pro- 
ceedings have  been  instituted  for  the  recovery  of  a  fine  imposed  by  the 
same  law,  to  a  discovery  under  oath,  is  constitutional :  Day  v.  The  State, 
7  Gill  322 ;  Higdon  v.  Heard,  14  Geo.  255.  See  also  Union  Bank  v.  Barker, 
3  Barb.  Ch.  358. 

1  Atwill  V.  Ferrett,  2  Blatch.  C.  C.  39 ;  Higdon  v.  Heard,  14  Geo.  255 ; 
Bank  of  U.  S.  v.  Biddle,  2  Pars.  Eq.  58  ;  Masters  v.  Prentiss,  2  Jones's 
Eq.  62.  The  defendant  cannot  even  waive  this  protection,  for  the  law  is, 
in  this  regard,  his  guardian :  Id. 


OF    DISCOVERY.  61 

to  a  bill  brought  to  a  discovery  of  a  marriage,  the  defend- 
ant pleaded  with  success  that  the  person  whom  she  was 
alleged  to  have  married  had  previously  married  her  sister, 
so  that  the  marriage,  if  real,  was  incestuous ;  and  to  a 
bill  against  bankers  for  obtaining  a  re-transfer  of  stock, 
alleged  to  have  been  unduly  obtained  from  the  plaintiff 
for  the  purpose  of  making  good  a  deficiency  in  his  son's 
accounts,  the  defendants  pleaded  that  the  transaction  re- 
ferred to  a  fraudulent  embezzlement  by  the  son  as  their 
clerk,  and  amounted  therefore  to  a  composition  of  felony; 
and  they  were  held  to  be  exempt  from  giving  discovery. 
In  like  manner,  where  a  bill  was  filed  to  discover  whether 
the  defendant  had  assigned  a  lease,  he  pleaded  to  the  dis- 
covery a  proviso  in  the  lease,  making  it  void  in  case  of 
assignment.  And  to  a  bill  seeking  a  discovery  whether 
a  person  under  whom  the  defendant  claimed  was  a  papist, 
the  defendant  pleaded  his  title  and  the  statute  of  11  & 
12  Wm.  3,  disabling  papists.  But  such  a  plea  will  only 
bar  the  discovery  of  the  fact  which  would  occasion  a  for- 
feiture. Therefore,  where  a  *tenant  for  life  pleaded  r-^,-^ 
to  a  bill  for  discovery  whether  he  was  tenant  for  life 
or  not,  that  he  had  made  a  lease  for  the  life  of  another, 
which,  if  he  was  tenant  for  his  own  life  only,  might  occa- 
sion a  forfeiture,  the  plea  was  overruled.  So  upon  a  bill 
charging  the  defendant  to  be  tenant  for  life,  and  that  he 
had  committed  waste,  it  was  determined  that  he  might 
plead  to  the  discovery  of  the  waste,  but  that  he  must 
answer  whether  he  was  tenant  for  life  or  not.(c) 

If  the  facts  are  such  as  to  exclude  both  a  demurrer 
and  a  plea,  the  privilege  may  be  claimed  by  answer,  and 
if  the  defendant  states  in  his  answer  that  he  cannot  give 

(c)  Mitf.  284-287 :  Claridge  v.  Hoare,  14  Ves.  59. 


62  ADAMS's    DOCTRINE     OF    EQUITY. 

the  information  asked  without  affording  evidence  of  his 
crime,  he  will  not  be  compellable  to  give  it.(c/)^ 

The  protection  thus  afforded  to  a  defendant  against 
being  compelled  to  prove  himself  guilty  of  a  criminal  act, 
is  subject  to  modification  in  respect  to  frauds.^  And  it 
seems  that  an  objection  will  not  hold  to  discovery  of  a 
fraud,  on  the  mere  ground  that  it  might  be  indictable  as 
a  conspiracy  at  law,  unless  there  is  an  indictment  actually 
pending,  or  at  all  events  a  reasonable  probability  that  one 
will  be  preferred.  The  result  of  an  opposite  course  would 
be  to  render  the  very  magnitude  of  a  fraud  its  protection 
against  redress.  (€)^  It  has  also  been  decided  that  a  de- 
fendant may  have  so  contracted  with  the  plaintiff  as  to 
bind  himself  to  make  discovery  of  the  facts  relating  to 
that  contract,  notwithstanding  th^t  it  may  subject  him  to 
pecuniary  penalties ;  and  therefore  a  London  broker  was 
compelled  to  give  discovery  in  aid  of  an  action  brought 
against  him  by  his  employer  for  misconduct,  although  it 
subjected  him  to  the  penalty  of  a  bond  given  for  the 

(d)  Parkhurst  v.  Lowten,  1  Meriv.  391  ;  s.  c.  2  Swanst.  194,  214 ;  Att.- 
Gen.  V.  Lucas,  2  Hare  566. 

(e)  Dummer  v.  Corporation  of  Chippenham,  14  Ves.  245 ;  Lee  v.  Read, 
5Bea.  381. 

^  The  defendant  should  state  that  he  believes  that  the  discovery  will  sub- 
ject him  to  penalties  :  Scott  v.  Miller,  Johns.  328. 

^  A  Court  of  Chancery  will  generally  compel  a  discovery  to  detect  fraud 
and  imposition,  and  to  set  aside  a  fraudulent  conveyance:  Skinner  v. 
Judson,  8  Conn.  528  ;  Attwood  v.  Coe,  4  Sandf.  Ch.  412.  And  see  the 
application  of  the  exception  in  cases  of  privileged  communications  infra, 
note  to  page  6. 

^  Howell  V.  Ashmore,  1  Stockton  (N.  J.)  82.  If,  in  a  bill  charging  fraud, 
the  defendants,  without  demurring,  answer,  they  must  answer  fully.  An 
answer  that  their  innocence  will  appear  by  the  accounts  disclosed  pre- 
cludes them  from  objecting  to  the  order  to  produce  them :  O'Connor  v. 
Tack,  2  Brews.  (Pa.)  407. 


OF    DISCOVERT.  63 

faithful  discharge  of  his  official  duties.  It  was  his  duty 
to  give  the  account  asked,  and  he  was  not  allowed  to  set 
up  his  own  violation  *of  the  law  as  an  excuse  for 
its  non-performance.  It  was  observed  by  the  Court  ^  J 
that  if  such  a  defence  were  permitted,  it  might  be  difficult 
to  show  any  reason  why  an  executor  or  administrator 
who  has  made  oath  duly  to  administer  the  assets,  and 
has  executed  a  bond  for  that  purpose,  might  not  allege 
those  matters  in  answer  to  a  bill,  charging  him  with  a 
fraudulent  account.  It  seems,  however,  that  a  mere  con- 
tract by  the  defendant  to  answer,  and  not  to  avail  himself 
of  the  protective  privilege,  does  not  per  se  exclude  him 
from  the  protection  of  the  law.(/) 

In  addition  to  the  cases  just  mentioned,  there  are  other 
cases  which  have  been  termed  exceptions  to  the  doctrine, 
but  which  are  in  fact  instances  to  which  its  principle  does 
not  apply.  Such,  for  instance,  are  those  where  the 
penalty  has  ceased  by  effluxion  of  time,  or  where  the 
the  plaintiff  is  alone  entitled  to  the  penalty,  and  expressly 
waives  it  by  his  bill  ;(y)^  or  where  what  is  called  a  penalty 
or  forfeiture  is  in  reality  mere  stipulated  damages  or  cessa- 
tion of  interest.  Thus  where  a  lessee  covenanted  not  to 
dig  clay  or  gravel,  except  for  the  purpose  of  building  on 
the  land  demised,  with  a  proviso  that  if  he  should  dig  for 
any  other  purpose  he  should  pay  to  the  lessor  twenty 
shillings  a  load,  and  he  afterwards  dug  great  quantities 
of  each  article ;  on  a  biU  for  discovery  of  the  quantities, 
waiving  any  advantage  of  a  possible  forfeiture  of  the 
term,  a  demurrer  of  the  lessee,  because  the  discovery 

(/)  Mitf.  195  :  Green  v.  Weaver,  1  Sim.  404 ;  Lee  r.  Read,  5  Bea.  381. 
[g]  Mitf.  195-197  :  Trinity  House  Corporation  t".  Burge,  2  Sim  411. 

^  Skinner  v.  Judson,  8  Conn.  528.  But  see  Northrop  c.  Hatch,  6  Conn. 
361 ;  Dwinal  v.  Smith,  25  Maine  379. 


64  ADAMS's    DOCTRINE    OF    EQUITY. 

might  subject  him  to  payment  by  way  of  penalty,  was 
overruled.  And  where  a  devise  over  of  an  estate  in  case 
of  marriage  was  considered  a  conditional  limitation,  and 
not  a  forfeiture,  an  answer  as  to  a  second  marriage  was 
compelled.  In  like  manner  where  the  discovery  sought 
is  of  matter  which  would  show  the  defendant  incapable 
of  having  an  interest,  as,  for  example,  whether  a  claimant 
by  devise  is  an  alien,  and  consequently  incapable  of  taking 
r*A"|  ^y  purchase,  a  demurrer  will  not  hold. {hy  In  *re- 
spect  also  to  some  transaction  made  illegal  by  sta- 
tute, such  as  gaming  and  stockjobbing,  it  has  been  ex- 
pressly enacted,  that  the  parties  shall  be  compellable  to 
give  discovery  in  equity,  notwithstanding  that  by  so  doing 
they  may  expose  themselves  to  penalties. («)^ 

The  second  maxim  of  privilege  is,  that  no  man  need 
discover  legal  advice  which  has  been  given  him  by  his 
professional  advisers  :  or  statement  of  facts  which  have 
passed  between  himself  and  them  in  reference  to  the  dis- 
pute in  litigation.^ 

(A)  Mitf.  195,  196,  197. 

(i)  Mitf.  288 ;  9  Ann.  c.  14,  s.  3  ;  7  Geo.  2,  c.  8,  s.  2. 

^  See  Hambrook  v.  Smith,  16  Jur.  144. 

^  But  it  has  been  recently  held  that  a  plea  to  discovery  in  a  bill  for  an 
account,  that  the  party  would  subject  himself  by  answering  to  the  penalties 
of  the  Stockjobbing  Act,  was  good :  Short  v.  Mercier,  3  Macn.  &  Gord. 
205  ;  Robinson  v.  Lamond,  15  Jur.  240. 

^  The  application  of  the  rule  prohibiting  the  discovery  of  legal  advice, 
depends  first  upon  the  character  of  the  parties — secondly  upon  the  rela- 
tions existing  between  them — and  lastly  upon  the  surrounding  circum- 
stances. The  communication  to  be  protected  must,  in  the  first  place,  be 
made  between  the  client  and  his  legal  adviser  only:  Parker  v.  Carter,  4 
Munf.  273  ;  Jackson  v.  Inabinit,  Riley  Ch.  9  ;  March  v.  Ludlum,  3  Sandf. 
Ch.  35;  Crosby  w.  Berger,  11  Paige  377;  Stuyvesant  v.  Peckham,  3  Ed. 
Ch.  579  ;  The  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528  ;  or  some  per- 
son acting  as  that  adviser's  clerk  or  agent:  Parker  v.  Carter,  4  Munf. 
273  ;  Russell  v.  Jackson,  9  Hare  387  ;  Goodall  v.  Little,  1  Sim,  N.  S.  155 ; 


OF     DISCOVERY.  65 

The  statement  of  the  above  doctrine  is  thus  limited  in 
its  terms,  because  it  seems  doubtful  whether  statements 

Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547  ;  Lafone  v.  Falkland  Islands  Co.,  4  K. 
&  J.  34 ;  Walsham  v.  Stainton,  2  Hem.  &  M.  1 ;  Reid  v.  Langlois,  1  Mac. 
JL-  G.  627.  See,  however,  Ross  v.  Gibbs,  8  Eq.  L.  R.  522,  where  Stuart, 
V.-C,  held,  that  communications  with  an  unprofessional  agent  were  privi- 
leged. Hooper  p.  Gumm,  2  John.  &  H.  602 ;  but  the  rule  does  not  apply 
to  a  student  in  counsel's  oflBce  :  Andrews  v.  Solomon,  Pet.  C.  C.  356  5  nor 
to  the  son  of  the  attorney,  happening  to  be  present  in  the  office,  and  not 
connected  professionally  with  his  father :  Goddard  v.  Gardner,  28  Conn. 
172 ;  nor  to  a  confidential  clerk  :  Corps  r.  Robinson,  2  Wash.  C.  C.  388  ; 
nor  to  a  stranger  casually  present :  Jackson  v.  French,  3  Wend.  337  ;  nor 
to  communications  between  solicitors  of  opposite  parties:  Gore  v.  Bowser, 
5  De  G.  &  Sm.  30 ;  nor  to  communications  between  different  defendants 
made  for  the  purpose  of  being  laid  before  their  solicitor:  Goodallr.  Little, 
1  Sim.  N.  S.  155 ;  though  see  Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547  ;  also 
Betts  r.  Menzies,  26  L.  J.  Ch.  528.  In  the  second  place  the  relation  of 
solicitor  and  client  must  actually  exist  between  the  parties ;  therefore,  if 
a  lawyer  acts  simply  as  a  friend,  communications  to  him  in  that  capacity 
will  not  be  protected :  Coon  v.  Swan,  30  Verm.  6 ;  nor  communications 
made  after  the  relation  has  ceased  to  exist :  Yordan  v.  Hess,  13  Johns. 
492 ;  and  the  client  must  not  be  a  merely  nominal  party,  but  must  have 
some  interest  in  or  control  over  the  suit:  Id.  219;  Hamilton  v.  Neel,  7 
Watts  517. 

Lastly,  the  circumstances  under  which  the  communication  is  made  are 
to  be  taken  into  consideration.  It  was  at  one  time  thought  that  the  rule 
applied  only  to  disclosures  made  when  there  was  a  cause  pending ;  see 
infra  pp.  6  and  7  in  the  text,  and  also  Whiting  v.  Barney,  30  N.  Y.  330, 
where  the  origin  of  the  protection  is  explained  and  the  old  rule  in  this  re- 
spect adhered  to ;  but  communications  made  after  a  dispute  has  arisen, 
though  before  litigation  are  now  protected:  see  Warde  v.  Warde,  1  Sim. 
X.  S.  18  (endorsed  on  another  point  in  3  Mac.  &  Gord.  365) ;  Jenkyns  r. 
Bushby,  L.  R.  2  Eq.  547 ;  Bluck  v.  Galsworthy,  2  Giff.  453  ;  McLellan  v. 
Longfellow,  32  Maine  494 ;  McMannus  r.  The  State,  2  Head  213  ;  and  the 
privilege  has  been  extended  to  matters  disclosed  to  an  attorney  who  has 
been  employed  to  draw  a  deed :  Parker  p.  Carter,  4  Munf.  273  ;  though  see 
The  Bank  of  Utica  r.  Mersereau,  3  Barb.  Ch.  528  ;  or  an  affidavit  to  get  an 
assessment  reduced :  Williams  v.  Fitch,  18  N.  Y.  546. 

This  privilege  against  discovery  extends  only  to  those  matters  "  in  which 
it  is  lawful  for  the  client  to  ask  and  the  solicitor  to  give  professional  ad- 
vice-," and  therefore  not  to  cases  of  fraud  concerted  between  counsel  and 
client :  Reynell  ».  Sprye,  10  Beav.  51 ;  11  Beav.  618  ;  Gart«ide  v.  Ontram, 
5 


66  ADAMS's    DOCTRINE    OF    EQUITY. 

of  fact  which  have  passed  between  himself  and  his  ad- 
visers, if  made  before  the  litigated  question  arose,  are  en- 
titled to  the  same  privilege.  There  is  no  doubt  that  the 
privilege  exists,  where  the  discovery  is  sought  from  the 
professional  adviser ;  for  the  rule  is  in  all  cases  imperative 
and  express,  that  wherever  an  attorney  or  counsel  is  pro- 
fessionally employed,  any  communication  with  his  client 
for  the  purpose  of  that  employment  is  privileged;  and 
whether  he  be  examined  as  a  witness,  or  whether  he  be 
made  on  some  special  ground  a  defendant  in  the  suit,  he 
cannot  divulge  what  he  has  so  learnt,  [k)     There  is  also 

[k)  Greenough  v.  Gaskell,  1  M.  &  K.  98  ;  Herring  v.  Clobery,  1  Ph.  91 ; 
Jones  V.  Pugh,  1  Ph.  96. 

26  L.  J.  Ch.  113.  The  fraud,  however,  must  be  concocted  between  the 
solicitor  and  client,  and  when  the  fraud  is  purely  collateral  to  the  com- 
munication, and  none  was  charged  on  the  part  of  the  solicitor,  the  com- 
munication was  protected :  Mornington  v.  Mornington,  2  Johns.  &  II.  697. 
The  privilege  against  discovery  is,  in  general,  inapplicable  to  communi- 
cations between  a  testator  and  his  solicitor,  with  reference  to  the  dispo- 
sitions contained  in  his  will,  notwithstanding  that  the  enforcement  of  dis- 
covery may  lead  to  the  disclosure  of  an  illegal  purpose  entertained  by  the 
testator,  as  of  a  secret  trust :  Kussell  v.  Jackson,  9  Ilare  387.  But  in  a 
case  where  this  question  did  not  arise  on  the  dispositions  of  the  will,  but 
only  collaterally,  such  communications  were  held  privileged :  Chew  v. 
Farmers'  Bank  of  Maryland,  2  Maryl.  Ch.  Dec.  231.  The  rule  of  privilege, 
also,  is  inapplicable  to  communications  between  a  solicitor  and  one  under 
whom  both  parties  to  a  cause  claim  :  Chant  v.  Browne,  16  Jur.  606  ;  s.  c, 
9  Hare  790. 

Where  husband  and  wife  have  distinct  interests,  and  the  wife  is  induced, 
in  dealing  with  those  interests,  to  act  under  the  advice  of  the  husband's 
solicitor,  the  latter  is  to  be  deemed  to  act  as  the  solicitor  of  both,  and 
either  has  the  right  to  the  production  and  inspection  of  the  documents  re- 
lating to  such  transaction,  which  have  come  in  the  course  thereof  into  the 
solicitor's  possession :  Warde  v-  Warde,  3  Macn.  &  Gord.  365, 

The  privilege  in  question  is  confined  to  communications,  and  does  not 
apply  to  the  acts  of  the  parties:  Kelly  v.  Jackson,  13  Irish  Eq.  129. 

In  some  states,  as  in  Georgia  and  Missouri,  these  communications  be- 
tween solicitor  and  client  are  protected  by  statute. 


OF     DISCOVERY.  67 

no  doubt  that  where  discoTery  is  sought  from  the  client, 
he  is  not  bound  to  discoA^er  the  advice*or  opinions  which 
have  been  given.  But  it  has  been  contended,  and  gene- 
rally considered,  that  he  must  disclose  the  statements  on 
which  they  were  given,  unless  made  in  contemplation  of 
or  pending  a  suit.  The  existence,  however,  of  this  sup- 
posed liability  in  the  client  seems  open  to  doubt.  The 
cases  which  have  been  considered  to  establish  it,  are  ap- 
parently capable  of  a  different  interpretation  ;  and  it  seems  . 
difficult  to  discover  any  substantial  difference,  in  point  of 
reason,  principle,  or  convenience,  between  the  liability  of 
the  client,  and  that  of  his  ^counsel  or  solicitor,  to  r-^j-, 
disclose  communications  made  in  confidence,  or  be- 
tween the  communications  so  made  and  others  which  differ 
from  them  only  in  this,  that  they  precede  instead  of  fol- 
low the  actual  arising  of  a  dispute.  (/)  If,  before  the 
communications  were  made,  litigation,  or  a  dispute  ending 
in  litigation,  had  commenced,  the  client  is  certainly  ex- 
empt from  discovery,  at  least  if  they  related  to  the  dispute, 
or  matters  in  dispute.  The  first  point  decided  on  this 
subject  was,  that  communications  made  pending  litigation, 
and  with  reference  to  such  litigation,  were  privileged. 
The  next,  that  communications  made  before  litigation,  but 
in  contemplation  of,  and  with  reference  to,  litigation  which 
was  expected  and  afterwards  arose,  were  entitled  to  the 
same  privilege  A  third  question  then  arose  with  regard 
to  communications  taking  place  after  a  dispute  had  arisen 
between  the  parties,  which  was  afterwards  followed  by 
litigation,  but  not  made  in  contemplation  of,  or  with  ref- 
erence to,  that  litigation ;  and  these  communications  were 
also  protected.^     And  it  was  finally  decided  that  a  defend- 

(Z)  Pearse  v.  Pearse,  1  De  G.  &  S.  12. 

*  Warde  v.  Warde,  1  Sim.  N.  S.  18,  reversed  on  another  point,  3  Macn. 
&  Gord.  365 ;  McLellan  v.  Longfellow,  32  Maine  494.     See  Jenkyns  v. 


,68  ADAMSES    DOCTRINE    OF    EQUITY. 

ant  might  protect  from  discovery  in  the  suit  of  one  party, 
cases  or  statements  made  after  litigation  commenced  or 
contemplated  on  the  same  subject  with  other  persons, 
with  the  view  of  asserting  the  same  right,  {pi)  The  right 
to  protection  is  not  aifected  by  the  circumstance  that  the 
communications  have  not  been  made  directly  to  or  by  the 
solicitor  or  counsel,  but  have  been  transmitted  through  an 
intermediate  agent,  (w)^  But  it  is  essential  that  they 
should  be  made  in  respect  of  his  professional  character, 
and  it  is  not  sufficient  to  allege  that  they  were  communi- 
cations with  a  solicitor,  or  that  they  bore  a  reference  to 
the  legal  proceedings,  (o)^ 

The  third  maxim  of  privilege  protects  official  persons 

po-,  *froni  disclosing  matters  of  State,  the  publication 

of  which  might  be  prejudicial  to  the  community. 

Such,  for  example,  are  official  communications  between 

the  governor  and  law  officer  of  a  colony,  respecting  the 

(to)  Walsingham  v.  Goodricke,  3  Hare  122 ;  Holmes  v.  Baddeley,  1  Ph. 
476. 

(n)  Bunbury  v.  Bunbury,  2  Bea.  173 ;  Steele  v.  Stewart,  1  Ph.  471. 

(o)  Bunbury  v.  Bunbury,  2  Bea.  173 ;  Greenlaw  v.  King,  1  Bea.  137  ; 
Dartmouth  v.  Holdsworth,  10  Sim.  476  ;  [Chew  v.  Farmers'  Bank,  2  Maryl. 
Ch.  Dec.  231.] 

Bushby,  L,  R.  2  Eq.  547  (V.-C.  Kindersley),  where  a  case  stated,  prepared 
by  the  solicitor  of  a  predecessor  in  title  to  the  defendant,  and  the  opinion 
of  counsel  thereon,  was  protected — the  opinion  having  been  given  before 
litigation  was  commenced,  but  after  a  dispute  had  arisen.  But  communi- 
cations before  any  dispute  had  arisen,  are  not  privileged  :  Hawkins  v.  Gath- 
ercole,  1  Sim.  N.  S.  150. 

^  Russell  V.  Jackson,  9  Hare  387  ;  Goodall  v.  Little,  1  Sim.  N.  S.  155; 
Jenkyns  v.  Bushby,  L.  R.  2  Eq.  547. 

^  No  presumption  of  fact  is  to  be  made  against  any  one  for  enforcing  the 
rule  against  disclosure  by  his  solicitor :  Wentworth  v.  Lloyd,  10  H.  L. 
Cas.  589. 


OF    DISCOVERT.  69 

state  of  the  colony;  orders  given  by  the  governor  to  a 
military  officer;  correspondence  between  an  agent  of 
government  and  a  secretary  of  State ;  and  other  commu- 
nications of  the  same  class.  Such  communications  are 
privileged  from  disclosure,  because  if,  at  the  suit  of  a 
particular  individual,  they  were  liable  to  production  in  a 
Court  of  justice,  the  effect  would  be  to  render  them  less 
unreserved,  and  thus  to  prejudice  the  public  interest. 
Questions  as  to  the  extent  of  this  privilege  most  usually 
arise  in  the  examination  of  witnesses  at  law.  But  if  dis- 
covery of  matters  within  its  scope  be  asked  from  a  defend- 
ant in  equity,  he  may  successfully  refuse  to  give  it.  (pY 

It  will  be  observed  that  the  exceptions  just  considered 
are  merely  exceptions  to  the  right  of  discovery.  There 
is  no  rule  that  matters  falling  within  their  scope  cannot 
be  alleged  in  a  bill ;  or,  that,  if  proved,  they  may  not 
warrant  relief.  But  the  plaintiff  must  prove  them  for 
himself,  and  has  no  right  to  examine  the  defendant  re- 
specting them,  {q) 

Subject  to  these  exceptions,  the  rule  respecting  dis- 
covery is  that  "every  competent  defendant  in  equity 
must  answer  as  to  all  facts,  material  to  the  plaintiff's  case, 
he  must  answer  to  all,  and  not  to  a  portion  only,  and  he 
must  answer  distinctly,  completely,  and  without  needless 
prolixity,  and  to  the  best  of  his  information  and  belief." 

{p)  Phillipps  on  Evidence,  8th  ed.  189  ;  Smith  v.  East  India  Company, 
1  Ph.  50 ;  Rajah  of  Coorg  v.  East  Ind.  Co.,  25  L.  J.  Ch.  365. 
(g)  Mitf.  196. 

*  Although  the  principle  cited  in  the  text  is  familiar  to  the  profession, 
yet  the  American  editor  has  been  able  to  discover  only  two  cases  bearing 
upon  the  subject,  and  these  decided  not  in  Chancery,  but  at  law  :  Mar- 
bury  V.  Madison,  1  Cranch  144;  1  Burr's  Tr.,  by  Robinson,  186,  187.  See 
this  subject  fully  discussed  in  Rajah  of  Coorg  v.  East  Ind.  Co.,  25  L.  J. 
Ch.  345. 


70  Adams's  doctrine  of  equity. 

As  against  an  incompetent  defendant  discovery  cannot  be 
enforced,  viz.,  against  an  infant,  or  lunatic  without  com- 
mittee, or  the  Attorney-General  when  made  a  defendant 
on  behalf  of  the  Grown,  (r) 

The  first  rule  respecting  discovery  is,  that  the  defendant 
must  answer  to  all  facts  material  to  the  plaintiff's  case.^ 

*He  is  not  bound  to  answer  questions  of  law;  for 
•-  -'  such  questions  ought  to  be  decided  by  the  Court. 
He  is  not  bound  to  answer  questions  of  fact,  unless  rea- 
sonably material;  for  he  is  not  to  be  harassed  with  idle, 
and  perhaps  mischievous,  inquiries.  And  it  will  not  be 
sufficient  to  show,  that,  somehow  or  other,  they  may  be 
connected  with  the  case;  for  if  such  connection  be  very 
remote,  so  that  the  discovery  would  be  oppressive,  it  will 
be  refused:  as  for  example,  where  the  bill  charged  an 
executor  with  mixing  his  testator's  moneys  with  his  own, 
and  called  on  him  to  set  out  a  monthly  account  of  his 
banker's  balances,  with  an  account  of  his  own  property, 
debts,  and  liabilities,  (s)  And  lastly,  he  is  not  bound  to 
answer  merely  becausd  the  question  is  material  to  the 
issue,  but  it  must  be  also  material  to  the  plaintiff's  case;^ 

(r)  Micklethwaite  v.  Atkinson,  1  Coll.  173. 

(s)  Dos  Santos  v.  Frietas,  Wigr.  on  Discovery,  s.  239 ;  Janson  v.  Solarte, 

2  Y.  &  C.  127. 

^  Ouyler  et  al.  v.  Rogert  et  al.,  3  Paige  Ch.  R.  186 ;  Phillips  v.  Prevost, 
4  John.  Ch.  205 ;  Parkinson  v.  Trousdale,  3  Scammon  367 ;  Hagthorp  v. 
Hook,  1  Gill.  &  John.  272 ;  Salmon  v.  Clagett,  3  Bland  Ch.  142 ;  Brooks 
V.  Ryam,  1  Story  296-301  ;  Langdon  v.  Goddard,  3  Story  13  ;  Methodist 
Epis.  Church  v.  Jaques,  1  John.  Ch.  65 ;  Bank  of  Utica  v.  Messereau,  7 
Paige  517;  King  v.  Ray,  11  Paige  235;  Kittredge  v.  Claremont  Bank, 

3  Story  590  ;  Champlin  v.  Champlin,  2  Edw.  Ch.  362  ;  Robertson  v.  Bing- 
ley,  1  McC.  Ch.  333  ;  Wootten  v.  Burch,  2  Maryl.  Ch.  Dec.  190  ;  Rider  v. 
Riley,  Id.  16  ;  Waring  v.  Suydam,  4  Edw.  Ch.  426. 

*  The  plaintiff  is  entitled  to  discovery  of  the  defendant's  title,  for  the 
purpose  of  repelling  what  he  anticipates  vrill  be  the  case  set  up  by  the  de- 
fendant, though  not  of  the  evidence  by  which  it  is  to  be  supported :  Atty.- 


OF    DISCOVERY.  71 

for  although  the  plaintiff  is  entitled  to  know  what  the 
defence  is,  and  to  have  it  verified  on  oath,  he  is  not 
entitled  to  cross-examine  the  defendants  as  to  the  pre- 
cise mode  in  which  he  intends  to  establish  it.(^) 

Some  doubt  has  been  thrown  upon  the  applicability  of 
this  last  doctrine  where  the  discovery  is  sought  in  aid  of 
the  defence  to  an  action,  or  to  a  suit  already  pending  in 
equity.  The  language  of  the  cases  which  have  created 
the  doubt  may  certainly  be  taken  to  imply  that,  in  answer 
to  such  a  bill,  the  defendant  is  bound  to  set  forth  his  evi- 
dence. But  it  may  be  doubted  whether  it  was  intended 
to  go  so  far,  and  whether  it  must  not  be  limited  to  the 
general  rule,  that  he  must  answer  as  to  the  nature  of  his 
title,  and  as  to  the  truth  of  the  assertions  by  which  he 
sustains  it,  though  not  as  to  the  particular  evidence  on 
which  he  relies,  (w)^ 

{t)  Llewellyn  v.  Badeley,  1  Hare  527  ;  [Atty.-Gen.  v.  Corp.  of  London,  2 
Macn.  &  Gord.  247 ;  CuUison  v.  Bossom,  1  Maryl.  Ch.  Dec.  95.J 

(«)  Lowndes  v.  Davies,  6  Sim.  4G8 ;  Bellwood  t'.  Wetherell,  1  Y.  &  C. 
211-218  ;  Wigr.  on  Discovery,  s.  378  ;  Glascott  v,  Copperminers'  Company, 
11  Sim.  305  ;  Mitf.  53. 


Gen.  V.  Corp.  of  London,  2  Macn.  &  Gord.  247.  So,  he  has  a  right  to  the  dis- 
covery of  evidence  in  support  of  his  title,  in  proof  of  any  fraud  which  has 
been  committed  to  his  injury,  though  the  defendant  may  thereby  be  com- 
pelled to  disclose  the  evidence  in  support  of  his  own  :  Stainton  v.  Chad- 
wick,  3  Macn.  &  Gord,  575 ;  see  Young  v.  Colt,  2  Blatch.  0.  0.  373. 

"Where  a  defendant  holds  a  covenant  for  the  protection  of  deeds  for  the 
maintenance  and  manifestation  of  his  title,  he  is  not  bound  to  answer  to 
interrogatories  to  set  out  such  deeds  in  a  suit,  the  object  of  which  is  to 
show  that  a  disputed  piece  of  Idnd  is  not  comprised  in  the  defendant's 
title :  Bethell  v.  Casson,  I  Hem.  &  M.  806. 

It  seems  that  in  Massachusetts,  a  more  extended  right  of  inquiry  is 
allowed,  and  that  the  rule  with  regard  to  the  title  of  the  defendant  is  not 
applied  so  strictly :  Haskell  v.  Haskell,  3  Cush.  542. 

^  In  Swaby  v.  Sutton,  1  Hem.  &  M.  514,  the  bill  stated  two  indentures 
of  settlement,  giving  dates,  and  prayed  an  account,  &c.,  under  them.     The 


72  Adams's  doctrine  of  equity. 

This  rule  is  embodied  in  the  maxim  that  "if  a  defend- 
r*-|A-]  ant  *answers  at  all,  he  must  answer  fully;"  and 
its  meaning  is,  that  if  a  defendant,  instead  of  de- 
murring or  pleading  to  the  bill,  puts  in  an  answer,  and 
thus  professes  to  take  issue  on  the  whole  case,  and  to  go 
to  a  hearing  on  the  whole,  he  cannot  deny  a  portion  of 
the  plaintiff's  statement,  and  than  allege  that,  in  conse- 
quence of  such  denial,  the  rest  of  the  discovery  sought 
has  become  immaterial.^  If  he  wish  to  insist  on  that 
point,  he  must  protect  himself  by  demurrer  or  plea,  rest- 
ing his  defence  on  the  statement  in  the  bill,  or  on  a  single 
independent  issue.  If  he  does  not  adopt  that  course,  but 
goes  to  a  hearing  on  the  whole  controversy,  he  must  give 
discovery  on  all  points,  so  that  the  plaintiff,  if  the  decision 
be  in  his  favor,  may  obtain  a  complete  decree,  (z^)^  It  is 
manifest  from  this  explanation  of  the  rule,  that  it  applies 
to  such  matters  only  as  are  in  themselves  proper  objects 

(»)  Lancaster  v.  Evors,  1  Ph.  340;  [Reade  v.  Woodruffe,  24  Beav.  421.] 

answer  was  that  there  was  an  indenture  of  another  date,  and  an  appoint- 
ment exercised  under  that  excluding  the  plaintiff,  and  gave  no  account. 
Held  insuflBcient.  "  If  you  choose  to  rest  on  a  short  point,"  said  Wood, 
V.-C,  "  you  must  do  so  by  plea  ;  or  if  not,  you  must  answer ;  but  then  you 
must  meet  the  way  in  which  the  plaintiff  puts  his  case,  and  must  answer 
fully  everything  which,  if  answered  according  to  his  view,  would  assist 
him  at  the  hearing." 

^  See  Bains  v.  Goldey,  35  Penna.  St.  51.  See  also,  Chichester  v.  Mar- 
quis of  Donegal,  4  Chancery  Appeal  Cases  416. 

^  Inglessi  v.  Spartali,  29  Beav.  564.  By  the  interrogatories  of  a  bill 
filed  by  a  foreign  merchant  against  his  London  agent,  the  defendants  were 
asked  what  were  the  powers  and  authorities  given  to  them  (in  relation  to 
selling  currants),  and  by  what  documents  they  made  out  the  same.  The 
defendants  stated  that  the  powers  and  authorities  appeared  from  written 
correspondence,  and  that  various  letters  had  passed  between  the  parties  to 
which  they  referred.  Held,  that  the  answer  was  insufficient,  and  that  the 
defendants  were  bound  to  specify  the  documents  containing  their  powers 
and  authorities. 


OF    DISCOVERY.  73 

of  discovery.  It  will  not,  therefore,  apply  to  interroga- 
tories respecting  privileged  matters,  or  respecting  matters 
which  are  immaterial,  or  which  do  not  concern  the  plain- 
tiff's case,  or  which  for  any  other  reason  are  not  among 
the  subjects  on  which  the  court  enforces  discovery .  (««') 

The  last  rule  is  that  the  defendant  must  answer  dis- 
tinctly, completely,  without  needless  prolixity,  and  to 
the  best  of  his  information  and  belief.^ 

His  answer  must  be  distinct,  as  containing  a  positive 
allegation  of  each  fact,  and  not  merely  implying  it  by  way 
of  argument.  And  it  must  distinctly  meet  each  specific 
question  by  a  specific  reply ;  for  the  object  of  specific 
questions  is  to  sift  the  defendant ;  and  it  might  happen 
that,  when  he  came  to  answer  on  individual  points,  it 
would  recall  matters  to  his  memory.  An  inquiry,  for 
example,  whether  the  defendant  did  not  receive  a  speci- 
fied sum  at  a  specified  time;  is  not  sufficiently  answered 
by  giving  a  schedule  of  receipts,  which  does  not  include 
that  *sum,  and  then  saying  that  the  schedule  con-  r-^^  -.  -i 
tains  a  list  of  all  moneys  received.  (2:) 

It  must  be  complete,  and  so  framed  that  the  plaintiff 
can  effectually  make  use  of  it.  For  instance,  if  the 
plaintiff  were  to  ask  for  an  account,  it  would  not  be  suffi- 
cient to  tender  him  a  collection  of  account-books,  saying 

(tr)  Wood  r.  Hitchings,  3  Bea.  504. 

[x)  Faulder  v.  Stuart,  11  Ves.  296 ;  Mitf.  309,  210;  "Wharton  r.  Whar- 
ton, 1  S.  &  S.  235 ;  Anon.,  2  Y.  &  C.  310 ;  Tipping  v.  Clarke,  2  Hare  383, 
389  ;  [Duke  of  Brunswick  v.  Duke  of  Cambridge,  12  Beav.  281.] 

»  Taylor  ».  Luther,  2  Sumner  228  ;  Woods  v.  Morrell,  1  John.  Ch.  103 
Smith  r.  Lasher,  5  John.  Ch.  247  ;  Mechanics'  Bank  v.  Levy,  1  Edw.  Ch 
316 ;  Tradesmen's  Bank  v.  Hyatt,  2  Edw.  Ch.  195  :  Wyckloff  v.  Sniffen,  Id 
581 ;  Norton  v,  Warner,  3  Edw.  Ch.  106 ;  Robinson  v.  Woodgate,  Id.  422 
Sloan  v.  Little,  3  Paige  Ch.  103 ;  Bailey  r.  Wilson,  1  Dev.  &  Bat.  Ch 
188  ;  Pettit  V.  Candler,  3  Wend.  618. 


74  ADAMS's    DOCTRINE     OF     EQUITY. 

that  he  would  find  the  account  there.  But  the  defendant 
must  himself  examine  the  books  and  make  out  a  reason- 
able account,  referring  to  the  books  for  verification  and 
details,  (y)  The  rule,  however,  will  not  be  enforced  to  an 
oppressive  extent.  And,  therefore,  where  the  executors 
of  a  deceased  partner  were  called  upon  for  the  accounts 
of  a  partnership,  and  answered  that  they  could  not  state 
them  from  their  own  knowledge ;  that  they  had  tried  to 
make  them  out  from  the  books,  but  found  it  would  occupy 
a  great  time,  and  be  a  ruinous  expense ;  and  that  the 
plaintiff  was  at  liberty  to  inspect  the  books  himself ;  the 
answer  was  held  sufficient,  on  the  ground  that  they  had 
not  been  personally  concerned  in  the  transaction,  and  that 
they  had  given  the  plaintiff  an  opportunity  of  making  out 
the  account  as  fully  as  they  could  do  themselves.  (0)^ 

It  must  be  framed  without  needless  prolixity.  The 
chief  cases  in  which  the  prolixity  of  an  answer  has  been 
discussed,  were  those  where  accounts  were  demanded  of 
receipt  and  expenditure.^  And  it  has  been  repeatedly 
decided  that,  although  an  interrogatory  requiring  such 
accounts  would  not  be  satisfied  by  a  mere  general  state- 
ment, yet  a  statement  setting  forth  the  items  of  a  trades- 

[y)  White  v.  Williams,  8  Ves.  193 ;  Attorney-General  v.  East  Retford,  2 
M.  &  K.  ;:5  ;  Wigr.   on  Discovery,  s.  283. 
(z)  Christian  v.  Taylor,  11  Sim.  401. 

'  But  even  if  a  detailed  statement  would  be  too  burdensome,  the  defend- 
ant must,  nevertheless,  do  all  in  his  power  to  facilitate  an  examination  of 
the  accounts  by  the  plaintiif.  Thus  in  Drake  v.  Symes,  Johnson  G47, 
where  a  bill  was  filed  by  a  shareholder  in  an  insurance  company  against 
the  directors,  asking  for  an  account,  and  demanding  a  list  of  the  lives  in- 
sured, their  ages,  the  bonuses  paid,  &c.,  &c.,  it  was  held  that  an  answer 
which  merely  referred  to  the  books  of  the  company,  and  set  forth  those 
books  in  a  schedule,  was  not  sufficient ;  for  (as  Vice-ChancoUor  Wood  re- 
marked) there  should  have  been  some  reference  to  the  heads  of  informa- 
tion and  some  additional  facilities  should  have  been  afforded  the  plaintiff. 


OF    DISCOVERY.  75 

man's  bill,  or  copying  an  auctioneer's  catalogue  of  furni- 
ture, is  impertinent,  and  will  be  expunged  by  the  Court,  {a) 
If,  however,  the  matters  inquired  after  be  material  to  the 
*defence,  mere  prolixity,  such  as  setting  out  docu-  pj^.-,  n-i 
ments  at  length  which  might  have  been  simply 
referred  to,  will  not  be  dealt  with  as  impertinence,  although 
it  may  be  attended  with  the  risk  of  costs.  For  in  case 
the  answer  should  ever  be  used  against  the  defendant  in 
a  Court  of  law,  a  part  of  it  could  not  be  so  used  without 
the  whole ;  and  therefore  the  setting  out  of  such  docu- 
ments may  ultimately  prove  of  importance.  (J) 

It  must  be  to  the  best  of  the  defendant's  information 
and  belief.  And  the  information  meant  is  not  only  that 
which  he  actually  possesses,  but  that  also  which,  either 
by  inspecting  his  books,  or  by  making  inquiries  of  his 
solicitors  or  agents,  or  of  others  from  whom  he  has  a  right 
to  information,  is  fairly  within  his  reach.  And  a  mere 
allegation  that  he  believes  such  parties  will  not  give  him 
the  information,  or  even  that  they  have  refused  to  do  so, 
will  not  be  sufficient  to  excuse  its  want.  Whatever  means 
of  information  he  has  a  right  to  possess,  the  Court  will 
look  upon  as  being  in  his  possession ;  and  he  must  resort 
to  proper  means  for  enforcing  his  right,  (c)* 

(a)  Norway  v.  Rowe,  1  Meriv.  346 ;  Byde  t?.  Masterman,  Cr.  &  P.  265 ; 
Davis  V.  Cripps,  2  N.  C.  C.  435. 

[h]  Parker  v.  Fairlie,  1  S.  &  S.  295 ;  T.  &  R.  362 ;  Lowe  v.  ■Williams,  2 
S.  &  S.  574. 

(c)  Taylor  v.  Rundell,  Cr.  &  P.  104;  1  N.  C.  C.  128  ;  IPh.  222;  [Clinch 
V.  Financial  Corporation,  L.  R.  2  Eq.  271 ;]  Glen^jall  v.  Frazer,  2  Hare  99  ; 
Stuart  V.  Bute,  11  Sim.  442. 

*  Dinsmoor  v.  Ilazleton,  2  Fost.  (N.  H.)  535  ;  Green  v.  Carey,  12  Geo.  601. 
But  a  defendant  is  not  compellable  to  redeem  documents  relating  to  mat- 
ters in  question  in  a  suit,  which  were  pledged  by  him  previous  to  the  in- 
stitution of  the  suit :  Liddell  v.  Norton,  23  L.  J.  Ch.  169.  And  he  is  not 
bound  to  produce  documents  for  which  he  merely  holds  a  covenant  for 
production  against  a  third  party :  Bethell  v.  Casson,  1  Hem.  &  M.  806. 


76  ADAMs's    DOCTRINE    OF    EQUITY. 

A  question  has  sometimes  been  raised  whether  a  plain- 
tiff having  a  document  in  his  possession,  can  by  his  bill 
call  on  the  defendant  to  inspect  it,  and  then  to  give  an 
answer  with  respect  to  its  contents.  There  appears  to  be 
some  doubt  on  this  point,  (c?)    • 

A  defendant  is  also  bound,  if  required  by  the  plaintiff, 
to  set  forth  a  list  of  all  documents  in  his  possession,  from 
which  discovery  of  the  matters  in  question  can  be  ob- 
tained ;  and  if  the  possession  of  such  documents  and  their 
character  as  fit  subjects  of  discovery,  can  be  shown  from 
the  answer,  he  must  permit  the  plaintiff  to  inspect  and 
copy  them.^ 

In  order  to  obtain  this  production,  an  interrogatory  is 

{d)  Shepherd  v.  Morris,  1  Bea.  175,  179. 

^  Roosevelt ».  Ellithorp,  10  Paige  415;  see  also  Collom  v.  Francis,  1 
Parsons'  Select  Eq.  Cases  527.  A  party  is  not  entitled  to  a  discovery  of 
title  deeds  relating  solely  to  his  adversary's  title :  Thompson  v.  Engle,  3 
Green  Ch.  271 ;  Lewis  v.  Davies,  17  Jur.  253  ;  Cullisonu.  Bossom,  1  Maryl. 
Ch.  95  ;  though  privity  between  title  of  defendant  and  plaintiff  may  give 
the  right:  Cullison  v.  Bossom,  A  defendant  is  not  bound  to  produce  by 
way  of  answer,  any  public  documentary  evidence  of  which  he  is  the  official 
keeper :  Salmon  v.  Clagett,  3  Bland.  Ch.  145.  But  land  agents  will 
be  directed  to  deliver  up  maps,  plans,  &c.,  made  or  collected  in  the  course 
of  their  employment,  though  it  is  alleged  that  they  were  made  for  their 
own  private  use  :  Beresford  v.  Driver,  14  Beav.  387. 

Under  the  Pennsylvania  Statute  of  the  16th  of  June,  1836,  the  Supreme 
Court  has  not  jurisdiction  to  compel  the  discovery  of  title  deeds,  unless 
material  to  an  issue  pending  in  court:  Mange  v.  Guenat,  6  Whart.  141, 

An  heir  at  law  is  not  entitled  to  the  production  of  title  deeds  ;  but  an 
heir  in  tail  is,  and  so  also  is  a  devisee  :  Shaftesbury  v.  Arrowsmith,  4  Ves., 
66 ;  Rumbold  ».  Forteath,  3  K.  &  J.  748  ;  Story's  Equity,  s.  1092.  But  an 
heir  at  law  is  entitled  to  the  production  of  such  documents  or  parts  of 
documents  as  will  prove  his  pedigree :  Rumbold  v.  Forteath,  supra. 

By  the  14  &  15  Vict.  c.  99,  sect.  6,  the  Courts  of  common  law  of  Eng- 
land, are  authorized  to  require  the  production  of  documents,  as  might  have 
been  previously  done  by  means  of  a  bill  in  equity.  Similar  statutes  exist 
in  most  of  the  United  States. 


OF    DISCOVERY.  77 

*generally  included  in  the  bill,  asking  whether  rHj-io-i 
the  defendant  has  any  documents  in  his  possession 
or  power  relating  to  any  of  the  matters  alleged,  and  re- 
quiring him  to  enumerate  and  describe  them  in  the 
schedule.  If  he  admits  the  possession  of  such  docu- 
ments, a  motion  is  made  that  he  may  produce  them,  that 
the  plaintiff  may  have  liberty  to  inspect  and  copy  them, 
and  that  they  may  be  produced  before  the  examiner  and 
at  the  hearing  of  the  cause/ 

The  right  thus  conferred  of  enforcing  the  production  of 
documents,  is  a  substitute  for  the  more  troublesome  and 
expensive  method  of  requiring  their  contents  to  be  set  out 
in  the  answer  :^  and  in  conformity  with  this  view  it  is 
held,  first,  that  the  right  exists  for  the  purpose  of  dis- 
covery alone  ;  and  secondly,  that  it  must  be  regulated  by 
the  same  principles  which  regulate  the  right  to  discovery 
in  the  answer  itself. 

It  is  a  right  existing  for  the  purpose  of  discovery  alone 
and  does  not  depend  on,  nor  will  be  aided  by  a  title  to 
possess  the  documents  themselves. 

It  may  happen  that  a  suit  is  instituted  for  the  purpose 
of  obtaining  possession  of  documents,  alleged  to  be  im- 
properly withheld  from  the  plaintiff;  and  if  that  be  its 
object,  and  the  discovery  be  not  barred  by  demurrer  or 
plea,  the  plaintiff  is  entitled  to  have  them  described  in 

*  An  affidavit  in  support  of  a  motion  for  the  production  of  books  of  ac- 
count and  papers,  should  specify  or  refer  to  some  particular  entry  or  paper, 
or  state  some  fact  or  circumstance  to  show  the  necessity  of  an  inspection  : 
Phelps  V.  Piatt,  54  Barb.  (N.  Y.)  557. 

Such  affidavit  should  be  made  by  the  plaintiff,  or  if  by  the  attorney,  some 
reason  therefor  should  be  shown  :  Ibid. 

*  Carpenter  v.  Benson,  4  Sandf.  Ch.  496.  Therefore,  where  exceptions 
would  not  be  sustained,  if  the  bill  called  for  a  full  statement,  production 
will  not  be  required,  though  the  custody  of  the  documents  is  admitted ;  as 
where  an  answer  under  oath  is  waived :  Ibid. 


78  ADAMS's    DOCTRINE    OF    EQUITY. 

the  answer,  and  to  be  informed  whether  they  are  in  the 
defendant's  possession,  because,  without  proof  on  those 
points,  he  could  not,  supposing  his  claim  to  be  well- 
founded,  obtain  a.  perfect  decree.  If  the  documents  on 
inspection,  will  or  may  afford  evidence  to  sustain  his  claim, 
he  has  a  further  right  to  their  production  on  the  general 
principles  of  discovery ;  but,  unless  he  can  require  them 
on  that  ground,  the  mere  fact  that  he  claims  them  as  his 
own,  will  not  entitle  him  to  see  them,  until  after  the 
decree,  (e) 

It  is  regulated  by  the  same  principles  which  regulate 
the  right  to  discovery  in  the  answer  itself. 
r*1 4-1  ^"^^  immediate  consequence  of  this  doctrine  is, 
that  the  right  to  production  must  be  shown  from 
admissions  in  the  answer,  and  cannot  rest  on  extrinsic 
evidence.  The  question  is  not,  whether  the  allegations 
in  the  answer  are  true  or  false ;  for,  to  try  that  question, 
would  require  a  hearing  of  the  cause ;  but  it  is  whether, 
in  respect  of  the  plaintiff's  right  to  discovery,  the  docu- 
ments are  necessary  to  make  the  discovery  complete.  If, 
therefore,  the  defendant  does  not  admit  their  possession, 
or  their  relevancy  to  the  plaintiff's  case,  the  production 
cannot  be  enforced.^  The  same  result  will  follow,  if  they 
are  uncertainly  described,  so  that  the  Court  cannot  ascer- 

(e)  Wigr.  on  Discovery,  s.  295-298  5  [Snoddy  v.  Finch,  9  Rich.  Eq.  355.] 

^  Upon  a  motion  for  the  production  of  documents,  the  court  will  not  re- 
ceive evidence  extraneous  to  the  answer,  to  show  that  a  particular  docu- 
ment had  been  fraudulently  omitted  from  the  schedule,  although  the  de- 
fendant does  not  object  to  the  extraneous  evidence,  and  has  adduced 
evidence  to  contradict  it:  Reynell  v.  Sprye,  1  De  G.  Macn.  &  Gord.  656. 
So,  the  plaintiff  is  not,  on  an  allegation  that  extracts  from  books,  sworn 
to,  embrace  everything  bearing  on  the  controversy,  are  garbled,  entitled 
therefore  to  have  inspection  of  the  whole  books :  Robbing  v.  Davis,  1 
Blatchf.  238. 


OF     DISCOVERY.  79 

tain  to  what  its  order  should  apply.  (/)  If  the  bill  con- 
tained interrogatories  to  elicit  the  requisite  admissions, 
and  the  answer  has  failed  to  give  them,  it  may  be  open  to 
an  exception  forinsufficiency ;  or  if  the  interrogatories  have 
been  inadequately  framed,  their  inadequacy  may  render 
an  amendment  requisite,  but  in  either  case  the  admissions 
must  be  extracted  from  the  defendant  before  the  order  for 
production  can  be  made. 

The  admissions  necessary  to  compel  production  are. 
that  the  documents  are  in  the  defendant's  possession  or 
power,  and  that  they  are  of  such  a  character  as  to  con- 
stitute proper  matters  of  discovery  within  the  ordinary 
rules.^ 

The  documents  must  be  in  the  defendant's  possession 
or  power.  And  for  this  purpose,  it  is  sufficient  that  they 
are  admitted  to  bel'ong  to  him,  although  they  may  be  out 
of  his  actual  custody.  The  possession  therefore  of  his 
solicitor  or  agent,  or  of  any  other  person  whose  possession 
he  can  control,  is  equivalent  to  his  own.(^)^     If,  however, 

(/)  Inman  r.  Whitley,  4  Bea.  548  ;  Tipping  v.  Clark,  2  Hare  383,  389. 

(g)  Ex  parte  Shaw.  Jac.  270 ;  Morrice  v.  Swaby,  2  Bea.  500 ;  [Lady  Beres- 
ford  V.  Driver,  14  Beav.  387  ;  Bobbins  v.  Davis,  1  Blatchf.  C.  C.  238.  See 
ante,  note  to  p.  12.] 

^  Where  the  bill  charges  the  possession  of  documents  which  relate  to 
the  matters  in  question,  the  defendant  cannot  protect  himself  from  setting' 
out  a  list  and  description  of  the  documents,  by  merely  alleging  his  belief 
that  they  do  not  contain  evidence  of  or  tend  to  show  the  plaintiffs  title, 
but  he  is  bound  distinctly  to  negative  the  allegations  of  the  bill :  Att.-Gen. 
r.  Corp.  of  London,  2  Macn.  &  Gord.  1.  A  denial,  under  oath,  of  the  rele- 
vancy of  concealed  passages  will  not  be  suflBcient.  If  the  court  ascertains 
that  they  might  possibly  refer  to  the  questions  at  issue,  their  production 
will  be  enforced  :  Caton  v.  Lewis,  22  L.  J.  Ch.  906 

'  Where  deeds  are  in  the  possession  of  the  solicitor  of  two  tenants  in 
common,  it  was  held  that  one  of  the  tenants  could  not  be  compelled  to 
produce  them  in  a  suit  to  which  the  other  tenant  was  not  a  party :  Edmonds 
r.  Foley,  30  Beav.  282. 


80  ADAMS's    DOCTRINE    OF    EQUITY. 

a  document  be  in  the  joint  possession  of  the  defendant 
and  of  some  other  person  who  is  not  before  the  Court,  its 
production  will  not  be  compelled :  and  that  for  two  reasons; 
one,  that  a  party  will  not  be  ordered  to  do  that  which  he 
cannot,  or  may  not  be  able  to  do;  the  other,  that  another 
r*l  '^l  *person  not  present  has  an  interest  in  the  docu- 
ment, which  the  Court  cannot  deal  with.(y^)^  The 
result  is  the  same  if  he  holds  the  documents  in  his  sole 
possession,  but  on  the  joint  account  of  himself  and  of 
other  persons,  who  are  not  before  the  Court.  But,  if  his 
possession  is  on  his  own  account  only,  and  he  owes  no 
duty  to  such  other  persons,  the  mere  fact  that  the  docu- 
ments are  important  to  their  interests  will  not  prevent 
their  production.  («y 

The  documents  must  be  of  such  a  character  as  to  con- 
stitute proper  matters  of  discovery  within  the  ordinary 
rules,  viz.,  they  must  not  fall  within  any  of  the  protected 
classes;  and  they  must  be  material  to  the  plaintiff's  case. 
Their  character  on  these  points  must  be  learnt  from  the 
answer.  If  the  answer,  by  its  want  of  distinct  allegation, 
leave  the  right  to  protection  doubtful,  the  omission  may 
be  supplied  by  affidavit;  or,  if  part  only  of  the  document 
is  entitled  to  protection,  the  defendant  may  seal  up  such 

[h)  Taylor  v.  Kundell,  Cr.  &  P.  104 ;  Murray  v.  Walter,  Cr.  &  P.  114  ; 
'  [Morrell  v.  Wooten,  13  Beav.  105;  Ford  v.  Dolphin,  1  Drew.  222;  Chant  v. 
Brown,  9  Hare  790  ;  Penny  v.  Goode,  1  Drew.  474.] 

{{)  Hercy  v.  Ferrers,  4  Bea.  97. 

^  Where  possession  of  documents  is  admitted  by  two  defendants,  one  of 
whom  dies,  production  cannot  be  enforced  in  the  absence  of  his  represen- 
tatives: Robertson  v.  Shewell,  15  Beav.  277.  See  also  Warwick  v.  Queen's 
College,  L.  R.  4  Eq.  254. 

^  A  defendant  cannot  refuse  to  produce  priva':e  and  confidential  letters 
from  a  stranger,  on  the  ground  that  the  writers  forbid  their  publication ; 
but  the  plaintiff  will  be  put  on  an  undertaking  not  to  use  them  for  any 
collateral  object:  Hopkinson  v.  Lord  Burghley,  L.  R.  2  Ch.  447. 


OF     DISCOVERY.  81 

parts  as  he  shall  swear  by  affidavit  to  be  of  a  protected 
character.  (^)^  If,  however,  the  uncertainty  be  not 
remedied  by  affidavit,  or  if  the  answer  contradict  itself 
or  be  palpably  incredible,  production  may  be  enforced, 
to  ascertain  the  truth.  (/)^ 

It  will  be  observed  that,  in  order  to  entitle  the  plaintiff 
to  have  a  document  produced,  it  is  sufficient  to  show  that 
it  is  material  to  his  own  case.  His  right  will  not  be  ex- 
cluded because  it  happens  to  be  evidence  for  the  defend- 
ant also,  (w?)^  But  if  it  be  not  relevant  as  affirmative 
evidence  for  himself,  he  will  not  be  entitled  to  inspect  his 

(Jt)  Llewellyn  v.  Badeley,  1  Hare  527 ;  Curd  v.  Curd,  1  Hare  274 ; 
[Robbins  v.  Davis,  1  Blatch.  C.  C.  238.] 

(Z)  Bowes  F.  Fernie,  3  M.  &  C.  632;  Latimer  r.  Neate,  11  Bligh  112;  4 
CI.  &  F.  570;  Bannatyne  c.  Leader,  10  Sim.  230. 

(m)  Burrell  v.  Nicholson,  1  M.  &  K.  680. 

^  If  a  plaintiff  prays  for  an  order  on  a  defendant  to  produce  books  and 
papers,  the  Court  may,  as  a  condition  precedent,  require  the  plaintiff  to 
undertake  not  to  communicate  the  contents  improperly.  An  injunction 
will  lie  to  restrain  him :  O'Connor  v.  Tack,  2  Brews.  (Pa.)  407. 

*  For  instances  in  which  the  Court  refuses  to  compel  the  production  of 
privileged  documents,  the  student  is  referred  to  Enthoven  r.  Cobb,  5  De  G. 
&  Sm.  595  (aflBrmed  on  appeal),  in  2  De  G.,  M.  &  G.  632,  and  Reynolds  v. 
Godlee,  4  K.  &  J.  88.  In  these  instances  the  documents  protected  were 
cases  stated,  and  opinions  of  counsel  thereon.  And  the  rule  is  the  same 
where  the  defendant  claims  to  resist  discovery  on  the  ground  of  being  a 
purchaser  for  valuable  consideration  without  notice:  Hunt  v.  Elmes,  27 
Beav.  62. 

*  Att.-Gen.  c.  Corp.  of  London,  2  Macn.  &  Gord.  247.  The  defendant  in 
such  case  must  distinctly  negative  the  ground  on  which  the  plaintiff  claims 
inspection  of  the  document,  in  order  to  protect  himself:  Ibid.  The  de- 
fendant may  also  be  compelled  to  set  forth  whether  he  has  not  made  certain 
allegations  of  title,  though  not  whether  those  allegations  are  true,  or  of  the 
nature  of  that  title ;  and  may  be  compelled  to  set  forth  a  schedule  of  all 
documents  relating  to  the  matter:  Potter  v.  Waller,  2  De  Gex  &  Sm.  410. 
It  seems  that  the  defendant  cannot  protect  himself  from  discovery,  on  the 
ground  of  disclosing  the  evidence  of  his  title,  where  his  only  allegation  of 
title  is  negativing  that  of  the  p  aintiff:  Att.-Gen.  r.  Corp.  of  London,  2 
Macn.  &  Gord.  247. 

6 


82  ADAMS's    DOCTRINE    OF    EQUITY. 

adversary's  evidence,  merely  because  on  inspection  it  may 
prove  defective,  (w)  It  is  otherwise  if  the  bill  alleges 
r*ie-i  a  ^specific  defect^  in  the  defendant's  title,  and 
charges  that  the  documents  will  prove  the  existence 
of  that  defect.  Such  a  charge  will  entitle  the  plaintiff 
to  discovery,  to  the  extent  of  a  positive  allegation  in  the 
answer  that  they  will  not  afford  such  proof.  And  if  the 
answer  be  doubtful,  he  is  entitled  to  production,  (o)  The 
same  principle  seems  applicable  where  the  bill  seeks  to 
impeach  a  document,  and  alleges  that  its  invalidity  would 
appear  by  inspection.  In  such  a  case  inspection,  before 
the  hearing,  would  probably  be  permitted,  unless  the 
answer  satisfactorily  displaced  the  charge.  (/?) 

K  the  possession  and  character  of  the  documents  are 
sufficiently  admitted,  the  next  step  is  to  order  their  pro- 
duction ;  and  unless  some  ground  can  be  shown  for  re- 
fusing it,  an  order  for  that  purpose  is  almost  of  course.^ 
It  has  indeed  been  contended  to  be  of  absolute  right  in 
respect  of  the  maxim  that  "he  who  answers  at  all  must 
answer  fully,"  and  it  has  been  argued  that,  in  accordance 
with  the  maxim,  wherever  the  possession  and  character 
of  the   documents  are  admitted,  no  denial  by  answer  of 

(n)  Bolton  v.  Corporation  of  Liverpool,  3  Sim.  467 ;  1  M.  &  K.  88 ; 
Llewellyn  v.  Badeley,  1  Hare  527. 

(o)  Smith  V.  Beaufort,  1  Hare  507 ;  1  Ph.  209 ;  Coombe  v.  Corporation 
of  London,  1  N.  C.  C.  631. 

(p)  Kennedy  v.  Green,  6  Sim.  7;  Wigr.  on  Discovery,  s.  311. 

•^  The  petition  for  an  order  of  production  must  designate,  with  reasonable 
•certainty,  the  books  and  papers  called  for :  Williams  v.  Williams,  1  Maryl. 
'Ch.  Dec.  201 ;  Williams  v.  Savage  Man.  Co.,  3  Id.  306.  The  defendant, 
though  treated  as  plaintiff's  agent,  has  no  right  to  be  present  at  the  in- 
spection of  the  documents :  Bartley  v.  Bartley,  1  Drewry  233. 

The  general  rule  is  that  the  defendant's  books  in  daily  use  are  to  be 
produced  at  his  place  of  business :  Mertens  v.  Haigh,  Johns.  735. 


OF    DISCOVERY.  83 

the  plaintiff's  equity,  however  full  and  explicit,  will  ex- 
cuse from  production.  This  view,  however,  seems  to  be 
incorrect;  for  although  the  fitness  of  production,  so  far 
as  it  depends  on  the  character  of  the  documents,  is  de- 
termined on  the  same  principles  as  if  the  bill  had  asked 
that  they  should  be  incorporated  with  the  answer,  yet  it 
does  not  follow  that  an  objection  to  discover  their  con^ 
tents  must  be  taken  in  both  cases  in  the  same  technical 
form.  The  thing  demanded  is  the  same  in  both,  but  the 
form  of  demand  is  different,  and  so  also  may  be  the  form 
of  resisting  that  demand.  In  the  case  which  we  are  now 
considering  the  only  thing  asked  is  a  descriptive  schedule ; 
the  answer  gives  the  schedule ;  and  is  a  full  answer  ac- 
cording to  the  requirements  of  the  bill.     If  the  contents 

had  been  asked  *for,  the  defendant  might  have    ^    ^ 

r*171 
been  compelled  to  plead,  and  might  have  adopted    ^      -• 

that  course  to  avoid  the  technical  rule.  But  there  is  no 
such  requisition  in  the  bill ;  and  therefore,  if  the  plain- 
tiff's equity  be  effectually  displaced  by  the  answer,  the 
mere  technical  rule  that  an  answer  must  be  full,  does  not 
apply  to  the  production  of  documents.  (5-)^ 

{q)  Adams  v.  Fisher,  3  M.  &  C.  526 ;  Wigr.  on  Discovery,  s.  148-185 ; 
Lancaster  v.  Evors,  1  Ph.  349. 

^  Where  discovery  is  sought  in  relation  to  matters  in  which  the  plaintiff 
has  no  interest,  except  consequential  or  resulting  from  a  character  or  title 
denied  by  the  answer,  and  not  otherwise  appearing  on  the  record,  the 
plaintiff  has  no  equity  entitling  him  to  the  discovery.  But,  if  the  plaintiff's 
interest  in  the  discovery  sought  results  from  a  character  and  a  title  alleged 
in  the  bill,  and  if  the  bill  properly  avers  that  the  discovery  will  establish 
that  character  and  title,  and  also  establish  a  case  of  fraud  by  the  defendant, 
in  destroying  or  withholding  the  plaintiff's  remedies,  the  defendant  cannot 
withhold  discovery  by  generally  denying  the  character  and  title  claimed 
by  the  bill :  Stainton  v.  Chadwick,  3  Macn.  &  Gord.  575.  It  seems  that  a 
defendant  cannot  protect  himself  from  discovery,  on  the  ground  of  its  dis- 
closing the  evidence  of  his  title,  where  his  only  allegation  of  title  is  a 


84  ADAMS's    DOCTRINE    OF    EQUITY. 

A  defendant  may  also  in  some  cases  bind  himself  by 
the  frame  of  his  answer  to  produce  a  document,  which  is 
evidence  of  his  own  title  alone,  and  which  does  not  con- 
tain, nor  is  alleged  to  contain,  any  evidence  of  the  plain- 
tiff's case.  A  mere  reference  to  the  document  as  existing, 
and  as  constituting  a  portion  of  his  own  evidence,  will  not 
expose  him  to  this  liability;  but  if  he  professes  to  set  out 
its  contents,  or  to  give  an  abstract  of  it,  referring  for  veri- 
fication to  the  document  itself,  he  will  be  considered  to 
have  made  it  substantially  a  part  of  his  answer ;  and  if 
he  admits  possession,  will  be  bound  to  produce  it,  in  order 
that  the  plaintiff  may  ascertain  that  it  is  correctly  stated,  (r) 

(r)  Hardman  v.  Ellames,  2  M.  &  K.  732;  Latimer  v.  Neate,  11  Bligh, 
112;  Adams  v.  Fisher,  3  M.  &  C.  526,  548  ;  Att.-Gen.  v.  Lambe,  3  Y  &  C. 
171 ;  Phillips  V.  Evans,  3  N.  C.  C.  647 ;  Wigr.  on  Discovery,  s.  385,  424. 

negativing  that  of  the  plaintiff:  Att.-Gen.  v.  Corp.  of  London,  2  Macn.  & 
Gord.  247.  But  if  the  plaintiff's  title  is  denied,  and  the  answer  states 
positively  that  the  documents  in  the  defendant's  custody  relating  to  matters 
in  the  bill  veill  not  show  that  title,  the  Court  will  not  order  their  produc- 
tion ;  so,  even  if  he  merely  states  that  he  is  advised  and  believes  that  they 
will  not  show  the  plaintiff's  title :  Peile  v.  Stoddart,  1  Macn.  &  Gord.  192. 
In  Goodall  v.  Little,  1  Sim.  N.  S.  155,  however,  where  there  was  a  denial 
of  the  plaintiff's  title  in  the  bill,  and  the  answer,  admitting  the  possession 
of  certain  documents,  denied  that  these  documents  would  show  the  facts 
to  be  as  the  plaintiff  alleged  them,  the  Court  ordered  the  production  of  the 
documents,  on  the  ground  that  they  might  form  material  links  in  the  chain 
of  proof.  And  in  Swinborne  v.  Nelson,  22  L.  J.  (N.  S.)  Ch.  331,  dis- 
covery was  enforced,  notwithstanding  an  express  denial  of  the  plaintiff's 
title  in  the  answer.  The  general  language  of  Adams  v.  Fisher,  which  is 
cited  as  the  authority  for  the  doctrine  in  the  text,  was  said  not  to  be  in 
accordance  with  "  a  long  line  of  authorities  before  decided  in  this  Court," 
and  inconsistent  with  the  principles  of  equity  pleading ;  and  it  was  sup- 
posed that  the  case  in  question  was  intended  only  to  apply  to  cases  where 
the  discovery  would  not  assist  the  plaintiff  in  making  out  his  title  to  the 
relief  sought. 

There  is  no  distinction,  in  the  rule  to  be  applied  in  this  matter,  between 
ordinary  discovery  and  the  production  of  documents :  Swinborne  v.  Nelson, 
ut  sup. 


OF    DISCOVERY  85 

The  right  of  enforcing  discovery  on  oath  is  confined  to 
the  plaintiff  in  the  cause.  If  the  defendant  wishes  on  his 
part,  to  obtain  discovery,  he  must  constitute  himself  a 
plain tiflf  by  filing  a  cross-bill,  and  will  be  entitled  in  his 
turn  to  an  answer  on  oath,  so  soon  as  he  has  answered  the 
original  bill.^  If,  however,  the  plaintiff's  title  be  made 
out  by  documents,  the  production  of  which  is  material  for 
making  out  the  defence,  the  right  of  filing  a  cross-bill 
would  obviously  afford  no  adequate  aid  to  the  defendant; 
because  it  would  not  enable  him  to  see  the  documents, 
until  after  his  own  answer  had  been  filed.  It  appears  that 
under  such  circumstances  the  court  cannot  compel  the 
plaintiff  to  produce  the  documents,  but  if  he  states  the 
*alleged  document  to  be  in  his  possession,  may  ex-  r-^^  q-, 
cuse  the  defendant  from  answering  until  it  is  done. 

The  leading  case  on  this  doctrine  is  one  where  a  bill 
was  filed  against  executors,  praying  payment  of  two  pro- 
missory notes  given  by  the  testator  for  securing  15,000/. 

'  When  defendant  seeks  the  discovery  of  books  and  papers  in  the  pos- 
session of  the  plaintiff,  he  should  file  a  cross-bill :  Bogert  v.  Bogert,  2  Edw. 
Ch.  399,  See  also  as  to  cases  in  which  it  is  proper  to  file  cross-bills  :  White 
V.  Buloid,  2  Paige  Ch.  164 ;  Cloud  v.  Hamilton,  3  Yerg.  81 ;  Tarleton  r. 
Vietes,  1  Gilm.  470-;  Josey  v.  Rogers,  13  Geo.  478.  A  cross-bill  is 
merely  a  defence,  and  cannot  be  the  foundation  of  a  decree  concerning 
matters  not  embraced  in  the  original  writ :  Gallatian  v.  Erwin,  Ilopk.  48  ; 
Draper  v.  Gordon,  4  Sandf.  Ch.  210;  Gallatian  v.  Cunningham,  8  Cowen 
361,  8.  c. ;  Field  v.  Schieffelin,  7  John.  Ch.  252 ;  May  v.  Armstrong,  3 
J.  J.  Marsh.  262.  See  remarks  of  Kent,  Ch.,  as  to  cros8;-bill8,  in  Field  v. 
Schieffelin,  7  John.  Ch.  252.  Time  for  answering  may  be  enlarged  for 
the  purpose  of  bringing  in  a  cross-bill :  Josey  v.  Rogers,  13  Geo.  478 ; 
Primmer  v.  Patten,  32  Illinois  528.  The  Rules  of  Equity  Practice  adopted 
by  tae  Supreme  Court  of  Pennsylvania  in  1865  provide  that  specific  inter- 
rogatories to  the  defendants  shall  not  be  included  in  the  bill,  but  shall  be 
filed  separately  (Rule  39),  and  that  cross-bills  for  discovery  only  shall  not 
be  allowed,  but  the  defendant  shall  be  at  liberty  instead  thereof  to  file 
interrogatories  to  the  plaintiff  (Rule  41).  A  similar  rule  as  to  cross-bills 
had  been  previously  adopted  in  England  by  statute  15  &  16  Vic.  c.86, 1 19. 


86  ADAMS's    DOCTRINE    OF    EQUITY. 

One  of  the  executors  made  an  affidavit  that  he  had  in- 
spected the  first  note,  and  had  observed  on  the  face  of  it, 
circumstances  tending  to  impeach  its  authenticity ;  that 
he  was  informed  and  believed  that  the  second  note  had 
been  produced  by  the  plaintiff  for  payment  in  a  foreign 
country ;  and  that  he  was  advised  and  believed  it  was 
necessary,  in  order  that  his  answer  might  fully  meet  the 
case,  that  he  should,  before  answer,  have  inspection  of 
such  second  note.  It  was  ordered  that  the  defendants 
should  not  be  compelled  to  answer,  till  a  fortnight  after 
the  production  of  the  second  note.  For  the  purpose  how- 
ever of  obtaining  such  production,  it  will  not  be  sufficient 
to  allege  that  it  may  be  material  to  the  defence.  But  the 
circumstances  which  constitute  the  materiality  must  be 
so  stated  by  affidavit,  that  the  court  may  estimate  the 
alleged  necessity,  and  may  be  satisfied  that  it  is  not  need- 
lessly compelling  a  production.  The  validity  of  the  doc- 
trine is  still  uncertain.  It  has  been  said  by  a  Judge  of 
great  experience,  that  he  never  understood  the  reasoning 
on  which  it  proceeded,  whilst  another  has  expressed  his 
conviction  that  it  is  founded  on  principles,  which  upon 
examination  would  fully  support  it.(s)^ 

The  jurisdiction  of  the  Greal  Seal  for  enforcing  dis- 
covery is  available  in  aid  of  proceedings  for  civil  relief, 
whether  such  relief  be  asked  from  the  Court  of  Chancery, 

or  from  another  public  tribunal  in  this  country  which  is 
j» 

(«)  Princess  of  Wales  v.  Lord  Liverpool,  1  Sw.  1 14  ;  Taylor  v.  Heming, 
4  Bea.  235 ;  Milligan  v.  Mitchell,  6  Sim.  180 ;  Penfold  v.  Nunn,  5  Sim. 
405  ;  Bate  v.  Bate,  7  Bea.  528. 

^  To  entitle  a  plaintiff  in  a  cross-bill  to  a  stay  of  proceedings  in  the 
original  bill,  until  the  cross-bill  has  been  answered,  the  cross-bill  must  be 
sworn  to  positively,  either  by  the  plaintiff,  or  by  the  person  from  whom 
his  information  is  derived:  Talmage  v.  Pell,  9  Paige  Ch.  410;  Whiter. 
Buloid,  2  Paige  164. 


OF     DISCOVERT.  87 

itself  unable  to  enforce  disco  v^ery.^  But  discovery  will 
not  be  enforced  to  aid  a  proceeding  before  arbitrators,  or 
before  an  inferior  court.  And  it  has  also  been  refused  in 
regard  *to  proceedings  in  the  Ecclesiastical  Court,  p^-.  g-. 
But  the  true  reason  in  this  latter  case  is  that  it  is 
not  wanted,  for  the  Ecclesiastical  Cgurt  itself  can  compel 
an  answer.  Discovery  has  been  enforced  in  one  instance 
to  aid  the  jurisdiction  of  a  foreign  Court ;  but  the  pro- 
priety of  such  enforcements  seems  open  to  doubt.  (^)^ 

In  order  to  entitle  himself  to  such  discovery,  the  plain- 
tiff must  show  a  title  to  sue  the  defendant  in  some  other 
Court,  or  that  he  is  actually  involved  in  litigation  with 
the  defendant,  or  is  liable  to  be  so,  and  must  also  show 
that  the  discovery  prayed  is  material  to  support  or  defend 
the  suit.  K  he  does  not  show  this,  he  shows  no  title  to 
the  discovery,  (w)^     And  therefore,  when  a  bill  was  filed 

[t)  Mitf.  53,  186,  225 ;  Earl  of  Derby  r.  Duke  of  Athol,  1  Ves.  Sen.  202, 
205 ;  Bent  r.  Young,  9  Sim.  185. 
(u)  Mitf.  191. 

^  March  v.  Davison,  9  Paige  580 ;  Lane  v.  Stebbins,  Id.  622 ;  Atlantic 
Ins.  Co.  p.  Lunar,  1  Sandf.  Ch.  91.  But  a  discovery  will  not  be  allowed 
merely  to  guard  against  anticipated  perjury  in  a  suit  at  law  :  Leggett  v. 
Postley,  2  Paige  599,  Whether  a  court  will  sustain  a  bill  of  discovery 
merely  to  procure  such  admissions  as  might  be  used  in  mitigation  of  dam- 
ages, quceref    Gelston  v.  Hoyt,  1  John.  Ch.  543. 

*  In  New  York,  it  has  been  decided  that  a  bill  of  discovery  will  be  sus- 
tained to  aid  the  prosecution  or  defence  of  a  cItU  suit  in  a  foreign  tribu- 
nal :  Mitchell  v.  Smith,  1  Paige  287. 

'  Baxter  v.  Farmer,  7  Ired.  Eq.  239 ;  Turner  v.  Dickerson,  1  Stock.  Ch. 
140.  Thus  a  bill  will  not  lie  for  the  production  of  title  papers,  under 
which  the  plaintiff  claims  title,  merely  on  the  ground  that  they  may  be 
useful  in  some  future  action  :  Baxter  r.  Farmer.  Where  one  has  an  inter- 
est in  the  common  law  suit  of  such  a  kind  as  makes  him  in  effect  a  party, 
though  he  is  not  named  as  a  party,  a  bill  for  discovery  will  lie  against 
him :  Carter  i".  Jordan,  15  Geo.  76.  Where  a  demand  for  a  discovery  is 
merely  colorable  the  court  will  refuse  to  take  jurisdiction :  Jones  v. 
Bradshaw,'16  Gratt.  (Va.)  355. 


88  ADAMS's    DOCTRINE    OF    EQUITY. 

for  discovery  in  aid  of  an  action  at  law,  which  the  plaintiff 
alleged  by  his  bill  that  he  intended  to  commence,  the  Court 
being  of  opinion  that  the  case  stated  would  not  support 
an  action,  allowed  a  demurrer  to  the  bill,  (f )  Where  the 
plaintiff  alleges  in  his  bill  a  sufficient  case  at  law,  it  has 
been  doubted  to  what  extent  discovery  can  be  resisted, 
by  pleading  matters  which  would  be  a  defence  at  law.^  In 
a  case  of  Hindman  v.  Taylor,  before  Lord  Thurlow,  it  was 
said  that  where  the  bill  was  for  discovery  leading  to  relief 
at  law,  the  defendant  could  not  plead  matter  in  bar  to  the 
discovery  which  would  be  a  bar  to  the  relief  there.  The 
proposition,  however,  thus  widely  expressed,  does  not 
seem  consistent  with  later  decisions.  And  the  true  prin- 
ciple appears  to  be  that,  if  "the  legal  defence  is  of  a  char- 
acter showing  that  the  discovery  would  have  no  bearing 
on  the  issue  at  law,  it  will  be  a  sufficient  answer  to  the 
bill.  If  the  legal  defence  is  not  of  this  character,  but  the 
trial  at  law  will  be  of  the  general  merits,  the  discovery 
will  be  enforced.  (2^;)^ 

{v)  Mitf.  187. 

[w)  Hindman  v.  Taylor,  2  B.C.  C.  7 ;  Robertson  v.  Lubbock,  4  Sim. 
161,  172  ;  Scott  V.  Broadwood,  2  Coll.  447  ;  Hare  on  Discovery  47-60. 

^  As  a  general  rule,  when  a  complainant  is  entitled  to  relief,  he  is  also 
entitled  to  a  discovery  of  the  facts  upon  which  his  right  to  relief  is  based  : 
Metier  v.  Metier,  4  Green  (N.  J.)  457. 

"  Leggett  V.  Postley,  2  Paige  599  ;  March  v.  Davison,  9  Paige  580;  Lane 
V.  Stebbins,  Id.  622 ;  Deas  v.  Harvie,  2  Barb.  Ch.  448 ;  Seymour  v. 
Seymour,  4  Johns.  Ch.  409  ;  Lucas  v.  The  Bank  of  Darien,  2  Stewart 
280 ;  Bailey  v.  Dean,  5  Barb.  S.  C.  297 ;  Gelston  v.  Hoyt,  1  John.  Ch. 
543. 

Where  a  bill  seeks  for  discovery  alone,  and  not  for  relief  also,  the  de- 
fendant will  be  compelled  to  make  discovery,  if  the  court  suppose  that  it 
can  in  any  way  be  material  to  the  plaintiff,  in  support  or  defence  of  any 
suit:  Peck  v.  Ashley,  12  Met.  478.  But  see  Leggett  v.  Postley,  2  Paige 
569.  And  a  bill  of  discovery  to  obtain  evidence  which  might  have 
been  useful  in  a  trial  at  law,  must  be  filed  pending  the  suit  at  law,  unless 


OP    DISCOVERY.  89 

*A  bill  thus  filed  for  enforcing  discovery  in  aid  r*orj-i 
of  proceedings  before  some  other  tribunal  is  called 
a  bill  for  discovery,  in  contradistinction  to  those  bills  on 
which  the  consequent  relief  is  attainable  in  equity,  and 
which  are  called  bills  for  relief,  or  more  correctly,  for  dis- 
covery and  relief.  If  the  relief  be  attainable  in  a  different 
Court,  the  mere  fact  that  the  discovery  is  requisite  will 
not  alter  the  jurisdiction.  The  Court  of  Chancery  will 
enforce  the  discovery,  but  the  relief  must  be  sought  before 
the  appropriate  tribunal.^ 

some  sufficient  excuse  is  shown  why  it  was  not  filed  at  that  time :  Faulk- 
ner's Adm'x  V.  Harwood,  6  Randolph  125  ;  and  see  Foltz  v.  Pourie  &  Daw- 
son, 2  Dessau.  40  ;  3  Miss.  433.  After  a  verdict  or  judgment  at  law  a  party 
comes  too  late  with  a  bill  of  discovery  :  Duncan  v.  Lyon,  3  John.  Ch.  355, 
402 ;  Foltz  V.  Pourie  &  Dawson,  2  Dessau.  40  ;  Cowman  v.  Kingsland,  4  Edw. 
Ch.  627.  But  if  equity  has  concurrent  jurisdiction,  in  such  case,  and  the 
defendant  neglect  to  interpose  the  objection  by  demurrer,  and  answers  on 
the  merits,  the  jurisdiction  wiil  be  sustained,  notwithstanding  a  judgment 
at  law  :  Endicott  v.  Penny,  14  Sm.  &  Marsh.  144. 

It  seems  that  it  is  not  necessary  to  state  particularly  the  pleadings  at 
law,  80  as  to  show  what  precise  issues  are  pending :  Hinkle  v.  Currin,  1 
Humph.  (Tenn.)  74. 

The  joinder  of  defendants  in  separate  actions  or  of  separate  suits  at  law 
in  the  same  bill  of  discovery,  is  inadmissible :  Broadbent  r.  State,  7  Maryl. 
416  ;  MacDougald  v.  Maddox,  17  Geo.  52. 

^  A  bill  for  discovery  alone  may  be  maintained,  in  a  case  where,  if  it  had 
been  for  relief  also,  it  would  have  been  demurrable ;  as  on  a  bill  in  aid  of 
a  plea  of  illegal  consideration,  in  a  suit  at  law  on  a  bond  :  Benyon  v.  Net- 
tlefold,  3  Macn.  &  Gord.  94 ;  Manning  v.  Drake,  1  Mann.  (Mich.)  34.  A 
bill  for  discovery  in  aid  of  an  action,  must  show  affirmatively  that  the 
plaintiflT's  right  cannot  be  established  at  law,  without  aid  of  the  discovery 
which  he  seeks :  Stacy  v.  Pearson  &  Bobbitt,  3  Rich.  Eq.  148  ;  Merchants' 
Bank  ».  Davis,  3  Kelley  112;  Williams  v.  Harden,  1  Barb.  Ch.  298  ;  Nor- 
wich, &c.,  R.  R.  Co.  V.  Storey,  17  Conn.  364  ;  Lindsley  v.  James,  3  Cold. 
(Tenn.)  477 ;  though  in  Peck  ».  Ashley,  12  Met.  478,  it  was  held  that 
discovery  toay  be  enforced  notwithstanding  the  absence  of  such  allega- 
tion, where  the  court  can  suppose  that  it  would  be  in  any  way  material 
in  support  or  defence  of  an  action.  But  a  bill  will  lie  not  only  where 
the  plaintiflF  is  destitute  of  other  evidence,  but  also  to  aid  or  render  it 


90  ADAMS's    DOCTRINE    OF    EQUITY. 

The  discovery  obtained  by  a  bill  in  equity  is  only 
available  against  the  answering  defendant.^  It  cannot  be 
read  as  evidence  against  a  co-defendant,  unless  he  refers 
to  it  by  his  answer  as  correct,  or  is  so  connected  with  the 
answering  party  as  to  be  bound,  under  the  ordinary  rules 


unnecessary :  Stacy  v.  Pearson  &  Bobbitt,  3  Rich.  Eq.  148 ;  though  see 
Bell  V.  Pomeroy,  4  McLean  57.  It  is  no  answer  to  such  bill,  to  say 
that  the  facts  can  be  proved  by  other  witnesses,  if  they  are  incompetent 
by  reason  of  interest:  Bell  v.  Pomeroy. 

In  England,  the  modern  rule  is,  that  as  to  matters  not  originally  within 
the  cognisance  of  equity,  and  where  there  is  adequate  remedy  at  law,  a 
bill  for  discovery  merely,  can  alone  be  sustained ;  and  that  if  the  bill  fur- 
ther pray  relief,  special  or  general,  the  whole  is  demurrable :  Story,  Eq. 
Jur.  I  69,  70 ;  Equity  Plead.  |  312 ;  Foley  v.  Hill,  2  H.  L.  Cas.  37.  But 
in  the  United  States,  a  more  convenient  and  reasonable  doctrine  generally 
obtains  in  such  cases,  and  where  the  discovery  is  effectual,  the  court  will 
go  on  and  give  the  adequate  relief,  if  in  its  power,  to  prevent  a  multiplicity 
of  suits ;  unless  where  there  is  a  pending  action :  Story  Eq.  Jur.  ^  71  ; 
Brooks  V.  Stolley,  3  McLean  523 ;  Warner  v.  Daniels,  1  Wood.  &  Min.  90 ; 
Traip  v.  Gould,  15  Maine  82 ;  Lyons  v.  Miller,  6  Gratt.  438 ;  Sims  v. 
Aughtery,  4  Strob.  Eq.  121 ;  Holmes  v.  Holmes,  36  Verm.  525  ;  but  in  New 
Jersey  this  rule  has  not  been  adopted.  See  Little  v.  Cooper,  2  Stockt.  273. 
If,  however,  a  jury  is  necessary  to  determine  the  extent  of  the  relief,  dis- 
covery will  be  enforced,  and  the  case  then  sent  to  law :  Lynch  v.  Sumrall, 

1  A.  K.  Marsh.  468.  In  a  bill  for  discovery,  the  general  prayer  "  for  such 
other  and  further  relief  as  equity  and  good  conscience  may  require,"  &c., 
is  referrable  only  to  the  main  purpose  of  the  bill — discovery  :  Williams  v. 
Row,  12  P.  F.  Smith  118. 

^  As  a  general  rule,  the  answer  of  one  defendant  cannot  be  used  as  evi- 
dence against  his  co-defendant :  Leeds  v.  Marine  Ins.  Co.  of  Alexandria, 

2  Wheaton  380 ;  Osborne  v.  Bank  of  United  States,  9  Id.  738  ;  Van 
Reimsdyk  w.  Kane,  1  Gallis.  630;  Robinson  v.  Sampson,  23  Maine  388; 
Cannon  v.  Norton,  14  Verm.  178;  Conner  v.  Chase,  15  Id.  764;  Grant 
V.  U.  S.  Bank,  1  C.  C.  E.  112 ;  Phoenix  v.  Ingraham,  5  John.  412  ;  Pettit  v. 
Jennings,  2  Rob.  (Va.)  676  ;  Holloway  v.  Moore,  4  S.  &  M.  594 ;  Felch  v. 
Hooper,  20  Maine  159;  Singleton  v.  Gayle,  8  Porter  270;  Webb  v. 
Pell,  3  Paige  Ch.  368 ;   Judd  v.  Seaver,  8  Id.  548 ;   Dykers  v.  Wilder, 

3  Edw.  Ch.  496 ;  Hayward  v.  Carroll,  4  Har.  &  J.  518 ;  Stewart  v. 
Stone,  3  Gill  &  J.  510;  Calwell  v.  Boyer,  8  Id.  136;  and  in  numerous 
other  cases. 


OF    DISCOVERY.  91 

of  law,  by  his  declarations  or  admissions,  (ar)  If  there- 
fore a  bill  is  filed  for  relief,  no  person  can  be  made  a  party 
who  is  unaffected  by  the  relief,  notwithstanding  he  might 
give  important  discovery,  because,  as  against  himself,  dis- 
covery is  needless,  and  as  against  the  other  parties,  it 
would  be  unavailing.  In  like  manner,  if  the  bill  be  for 
discovery  alone,  no  persoa  can  be  made  a  defendant  who 
is  not  a  party  to  the  record  at  law.  There  is  an  excep- 
tion however  in  the  case  of  suits  against  corporations ;  and 
in  such  suits  it  is  allowable  to  join  the  officers  or  members 
personally  as  defendants,  in  order  that  they  may  give  dis- 
covery on  oath,  which  the  corporate  body  cannot  do.(^)^ 
As  against  the  defendant  himself,  if  he  be  not  under 
incapacity,  the  answer  is  evidence.  If  the  plaintiff  does 
not  reply  to  it,  and  thus  give  him  an  opportunity  of  veri- 
fication by  evidence,  the  whole  answer  must  be  taken  as 
true.^  If  a  replication  be  filed,  the  answer  is  not  evidence 
in  the  defendant's  favor,  but  the  plaintiff  may  use 
*any  portion  of  it,  without  admitting  the  remainder  p^n-.  -, 
to  be  read,  except  so  far  as  it  is  explanatory  of 
the  portion  used.  (0)     The  defendant,  however,  is  so  far 

(x)  Mitf.  188  ;  Anon.,  1  P.  W.  301  ;  Chenret  v.  Jones,  6  Mad.  267 ;  Crosse 
r.  Bedingfield,  12  Sim.  35 ;  Green  v.  Pledger,  3  Hare  165. 

(y)  Mitf.  188 ;  Kerr  v.  Rew,  5  M.  &  C.  154 ;  Glasscott  v.  Copperminers' 
Company,  11  Sim.  305,  314. 

(z)  Bartlefct  v.  Gillard,  3  Russ.  149,  156 ;  Freeman  v.  Tatham,  5  Hare 
329 ;  East  v.  East,  5  Hare  343  ;  [see  Glenn  v.  Randall,  2  Maryl.  Oh.  220.] 

'  Lindsey  v.  James,  3  Cold.  (Tenn.)  477. 

'Fant  V.  Miller,  17  Gratt.  (Va.)  187.  This  does  not  apply  where  an 
answer  under  oath  is  waived :  Tomlinson  v.  Lindley,  2  Carter  (Ind.)  569. 
Where  the  bill  calls  for  answer  not  under  oath,  the  jurat  of  the  answer 
will  be  stricken  out,  and  the  answer  considered  as  not  sworn  to  :  Sweet  r. 
Parker,  22  X.  J.  Eq.  453.  Where  the  plaintiflF  calls  on  the  defendant 
to  answer  the  allegations  of  the  bill  he  makes  defendant  a  witness  for  that 
purpose  and  for  no  other :  Eaton's  Appeal,  16  P.  F.  Smith  483  ;  see  also, 
Hart  r.  Freeman,  42  Ala.  567. 


92  ADAMS's    DOCTRINE    OF    EQUITY. 

entitled  to  the  benefit  of  his  answer,  that  any  material 
suggestion  made  by  it,  though  not  established  by  proof 
may,  at  the  discretion  of  the  Court,  be  referred  for 
inquiry,  (a)  And  if  a  positive  denial  in  the  answer  be  met 
by  the  evidence  of  one  witness  only,  the  Court  will  neither 
make  a  decree,  nor  send  the  question  to  a  trial  at  law.^ 
If  there  are  corroborative  circumstances  in  the  plaintiff's 
favor,  the  Court  will  depart  from  this  rule,  and  will  either 
make  an  immediate  decree,  or,  if  the  defendant  desire  it, 
will  direct  an  issue,  ordering  his  answer  to  be  read  as 
evidence  on  the  trial,  so  that  it  may  be  contrasted  with 
the  testimony  given  against  him.  (J)  The  defendant's 
answer  may  also  be  read  on  the  question  of  costs ;  and  the 
Court,  though  compelled  by  the  evidence  to  make  a  decree 
against  him,  may  give  credit  to  his  statement  on  oath  as 
to  his  own  conduct,  so  far  as  to  exempt  him  from  payment 
of  costs.  But  it  has  been  held  that  where  a  tender  is 
relied  on  by  the  defendant,  the  mere  unproved  statement 

(a)  Connop  v.  Hayward,  1  N.  C.  C.  33 ;  McMahon  v.  Burchell,  2  Ph. 
127. 

(6)  East  India  Company  v.  Donald,  9  Ves.  275 ;  Savage  v.  Brocksopp, 
18  Ves.  335. 

^  When  the  facts  alleged  in  the  complainant's  bill  are  denied  in  the  an- 
swer, it  is  a  general  principle'  that  they  must  be  proved  by  two  credible 
witnesses,  or  one  witness  and  strong  corroborating  circumstances  :  Swift 
V.  Dean,  6  Johns.  523 ;  Clason  v.  Morris,  10  Id.  524 ;  Atkinson  v.  Manks, 
1  Cow.  691 ;  Staflford  v.  Bryan,  1  Paige  Ch.  239 ;  Chance  r.  Teeple,  3 
Green  Ch,  173  ;  McDowell  v.  Bank  of  Wilmington  and  Brandywine,  1  Har- 
ring.  369 ;  Beatty  v.  Smith  &  Thompson,  2  Hen.  &  M.  395 ;  Raines  v. 
Jones,  4  Humph.  490  ;  Coles  v.  Raymond,  5  Blackf.  435  ;  Bibb  v.  Smith, 
1  Dana  580 ;  Mason  v.  Peck,  7  J.  J.  Marsh.  300 ;  Patterson  v.  Ilobbs,  1 
Lit.  275 ;  Littel  v.  Mclver,  1  Bibb.  203  ;  Paulling  v.  Sturgus,  3  Stewart 
95;  Neale  v.  Ilagthrop,  3  Bland,  551 ;  Hughes  v.  Blake,  6  Wheaton  453; 
Union  Bank  t>,  Geary,  5  Pet.  99 ;  Page  v.  Page,  8  N,  H.  187 ;  Daniel  v. 
Mitchell,  1  Story  173  ;  Myers  v.  Kenzie,  26  111.  36  ;  White  v.  Hampton,  10 
Iowa  238  ;  and  many  other  cases.  / 


OF    DISCOVERY.  93 

that  such  tender  has  been  made  is  not  sufficient  to  save 
costs.  Nor  can  the  answer  of  a  mortgagor  he  read  against 
a  mortgagee  to  deprive  him,  on  the  ground  of  misconduct, 
of  his  ordinary  right  to  costs,  (c) 

The  rule  which  allows  a  plaintiff,  who  has  replied  to 
the  answer,  to  read  selected  portions  only,  is  necessarily 
confined  to  cases  where  the  hearing  is  in  equity.  K  the 
hill  be  for  discovery  in  aid  of  a  procedure  at  law,  the 
answer  is  treated  at  law  like  any  other  admission,  and 
must  be  read  throughout,  if  it  be  read  at  all.^  The  costs 
also  of  such  an  answer  are  subject  to  a  different  rule  from 
those  of  an  answer  to  a  bill  *for  relief.  In  the  r^nft-i 
one  case  the  costs  of  discovery  are  a  portion  of 
the  costs  in  the  cause,  and  are  disposed  of  in  that  charac- 
ter at  the  hearing.  In  the  other,  the  defendant  is  entitled 
to  costs  as  a  matter  of  course,  immediately  on  putting  in 
a  full  answer,  for  the  Court  of  Chancery  never  hears  the 
cause ;  and  the  Court  which  does  hear  it  has  no  jurisdic- 
tion over  the  Chancery  costs. 

This  principle,  which  applies  to  bills  for  discovery  in 
aid  of  a  procedure  at  law,  was,  until  lately,  applied  to 
cross-bills  for  discovery  alone,  when  filed  in  aid  of  a  de- 
fence in  equity ;  so  that  in  a  suit  of  this  class  the  answer, 
if  read  at  all,  must  have  been  read  throughout,  and  the 
defendant,  on  filing  it,  was  entitled  to  his  costs.  The 
practice,  however,  is  now  altered,  and  it  is  directed  that 

(c)  Howell  V.  George,  1  Mad.  1 ;  Milnes  r,  Davidson,  3  Mad.  374  ;  Wright 
r.  Jones,  C.  P.  Coop.  493. 

^Hartf.  Freeman,  42  Alab.  567;  Fant  v.  Miller,  17  Gratt.  (Va.)  187. 
This  rule  also  applies  where,  as  in  the  United  States  generally,  the  court 
goes  on  to  give  relief  on  the  ground  of  discovery,  notwithstanding  that 
there  is  adequate  relief  at  law :  Lyons  v.  Miller,  6  Gratt.  439  ;  Holmes  v. 
Holmes,  36  Verm.  525;  ShotweU  v.  Smith,  20  N.  J.  Eq.  79. 


94  ADAMS's    DOCTRINE    OF    EQUITY. 

the  answer  to  a  cross-bill  for  discovery  only  may  be  read 
and  used  in  the  same  manner  and  under  the  same  restric- 
tions as  the  answer  to  a  bill  praying  relief,  and  that  the 
costs  of  it  shall  be  costs  in  the  original  cause,  unless  the 
Court  otherwise  orders,  (c?) 

(d)  42(i  Order  of  August,  1851 ;  125th  Order  of  May,  1845. 


COMMISSIONS    TO    EXAMINE     WITNESSES.  95 


*CHAPTER    11.  [*23] 

ON  COMMISSIONS  TO  EXAMINE  WITNESSES  ABROAD;  OF  PER- 
PETUATION OF  TESTIMONY  AND  OF  EXAMINATIONS  DE  BENE 
ESSE.^ 

In  addition  to  the  jurisdiction  for  discovery,  there  is 
another  substantially  similar  to  it,  under  which  the  Court 
of  Chancery  interposes  for  two  objects  :  first,  for  the  pro- 
curement of  evidence  to  be  used  elsewhere,  without  itself 
deciding  on  the  result,  viz.,  in  suits  for  a  Commission  to 
Examine  Witnesses  Abroad,  and  in  suit  to  Perpetuate 
Testimony;  and  secondly,  for  granting,  either  in  aid  of 
its  own  proceedings  or  of  a  proceeding  elsewhere,  an 
examination  of  witnesses  de  bene  esse. 

^  Courts  of  Chancery  in  the  United  States,  and  courts  of  law,  exercising 
chancery  powers,  are  in  the  constant  practice  of  entertaining  jurisdiction 
of  bills  for  the  perpetuation  of  testimony,  issuing  commissions  for  the  ex- 
amination of  witnesses  abroad,  and  of  permitting  testimony  to  be  taken  de 
bene  esse ;  and  it  will  be  found,  that  generally  the  rules  of  practice  are 
analogous  to  those  of  the  English  High  Court  of  Chancery.  See  upon  this 
subject  Clark  v.  Bundy,  6  Paige  432 ;  Brown  v.  Southworth  et  al.,  9  Id. 
351 ;  Lingan  v.  Henderson,  1  Bland  236  ;  Jerome  et  al.  v.  Jerome,  5  Conn. 
352 ;  In  the  matter  of  Isaac  L.  Kip,  1  Paige  Ch.  601 ;  Fort  r.  Ragusin, 
2  Johns.  Ch.  146 ;  Rockwell  r.  Folsom,  4  Id.  165 ;  Renwick  r.  Renwick, 
10  Paige  Ch.  420;  Bush  v.  Vandenbergh,  1  Edw.  Ch.  649;  Phelps  & 
SpaflFord  v.  Curtis,  1  Green  Ch.  387  ;  Stubbs  v.  Burwell,  2  Hen.  &  M.  536 ; 
Chapman  c.  Chapman,  4  Id.  426;  Oliver  v.  Palmer,  11  Gill  &  J.  426; 
Kinchcloe  v.  Kincheloe,  11  Leigh  393;  Gordon  v.  Watkins  et  al.,  1  S.  & 
M.  Ch.  37 ;  Story  on  Eq.  Plead.,  Ch.  Vll. ;  Baxter  v.  Farmer,  7  Ired.  Eq. 
239. 


96  ADAMS's    DOCTRINE    OF    EQUITY. 

The  jurisdiction  for  issuing  Commissions  to  Examine 
Witnesses  Abroad  is  sufficiently  explained  by  its  name. 
It  originated  in  the  incapacity  of  the  common  law  courts 
to  issue  such  commissions  without  the  consent  of 
both  parties.  That  incapacity  is  removed  by  a  recent 
statute ;  but  the  jurisdiction  of  equity  still  continues, 
though  its  exercise- is  less  frequently  re  quired.  («) 

The  jurisdiction  in  suits  to  Perpetuate  Testimony 
arises  where  the  fact,  to  which  the  testimony  relates,  can- 
not be  immediately  investigated  at  law,  e.  g.,  where  the 
person  filing  the  bill  has  merely  a  future  interest,  or  having 
an  immediate  interest,  is  himself  in  possession  and  not 
actually  disturbed,  though  threatened  by  the  defendant 
r*24-1  *^^^^  disturbance  at  a  future  time.  (J)  Under  a 
late  statute  the  jurisdiction  has  been  extended ; 
and  it  has  been  enacted,  that  "any  person  who  would, 
under  the  circumstances  alleged  by  him  to  exist,  become 
entitled  upon  the  happening  of  any  future  event,  to  any 
honor,  title,  dignity,  or  office,  or  to  any  estate  or  interest 
in  any  property,  real  or  personal,  the  right  or  claim  to 
which  cannot  by  him  be  brought  to  trial  before  the  hap- 
pening of  such  event,  shall  be  entitled  to  file  a  bill  to 
perpetuate  any  testimony  which  may  be  material  for  es- 
tablishing such  claim  or  right."  (c) 

The  jurisdiction  to  examine  witnesses  de  bene  esse  is  a 
jurisdiction  for  permitting  evidence  to  be  taken  before  the 
cause  is  regularly  at  issue,  in  cases  where,  from  the  age 
or  illness  of  a  witness,  or  from  his  being  the  only  witness 

(a)  1  Wm.  4,  c.  22,  s.  4  ;  Grinnell  v.  Cobb'old,  4  Sim.  546. 

(h)  Mitf.  51 5  1  Mad.  Ch.  Practice  253  ;  Dursley  v.  Fitzhardinge,  6  Ves. 
251  ;  Angell  v.  Angell,  1  S.  &  S.  83. 

(c)  Earl  of  Belfast  v.  Chichester,  2  J.  &  W.  439 ;  Townshend  Peerage 
Case,  10  "CI.  &  F.  289  ;  5  &  6  Vict.  c.  69. 


COMMISSIONS    TO    EXAMINE    WITNESSES.  97 

to  an  important  fact,  there  is  reason  to  apprehend  that, 
before  the  regular  opportunity  arrives,  material  evidence 
may  be  lost.  This  is  called  an  examination  de  bene  esse; 
and  the  depositions  taken  under  it  can  only  be  read,  if  the 
party  seeking  the  benefit  of  them  has  used  all  diligence  to 
examine  in  the  ordinary  course,  but  there  has  been  a 
moral  impossibility  of  his  so  doing,  {d)  The  same  course 
may  be  pursued  where  a  similar  danger  exists  in  reference 
to  an  action  at  law;  and  a  bill  may  be  entertained  for  an 
auxiliary  examination  de  bene  esse,  provided  there  be 
annexed  to  it  an  affidavit  of  the  circumstances  which 
render  such  examination  necessary,  (e)  The  principle  on 
which  this  affidavit  is  required,  where  the  matter  is  capa- 
ble of  being  immediately  the  subject  of  an  action  at  law, 
seems  to  be  that  the  bill  tends  to  alter  the  ordinary 
course  of  the  administration  of  justice,  which  ought  not 
to  be  permitted  on  the  bare  allegation  of  a  plaintiff.  The 
same  principle  is  applied,  as  *we  shall  hereafter  r*of;"| 
see,  where  a  bill  is  filed,  in  respect  of  an  instru- 
ment on  which  an  action  at  law  would  lie,  alleging  that  it 
is  destroyed  or  lost,  or  is  in  the  defendant's  custody,  to 
obtain  relief  which,  but  for  such  circumstances,  might  be 
had  at  law.  (/) 

The  mode  of  taking  the  evidence,  either  under  a  com- 
mission to  Examine  Witnesses  Abroad,  or  in  a  suit  to 
Perpetuate  Testimony,  or  in  an  examination  de  bene  esse, 
is  in  all  material  points  similar  to  that  adopted  in  the 
ordinary  examination  in  a  cause. 

In  a  suit,  however,  to  Perpetuate  Testimony,  the  cause 

{d)  Frere  v.  Green,  19  Ves.  320;  Hope  v.  Hope,  3  Bea.  317;  Mcintosh 
V.  Great  Western  Railway,  1  Hare  328 ;  Cann  v.  Cann,  1  P.  W.  567. 
(e)  Mitf.  52,  150;  Angell  v.  Angell,  1  S.  &  S.  83. 
{f)  Post.     Re-execution  of  Lost  Instruments. 


98  ADAMS's    DOCTRINE     OF    EQUITY. 

does  not  proceed  beyond  the  examination  of  the  witnesses. 
When  that  has  been  completed  it  is  considered  at  an  end ; 
and  the  only  remaining  step  is  the  publication  of  the  evi- 
dence. This  is  effected  by  an  order  of  the  Court;  but 
such  an  order  cannot  be  obtained  except  for  the  purpose 
of  a  suit  or  action,  nor  even  for  that  purpose  during  the 
lifetime  of  the  witnesses,  unless  on  special  grounds,  show- 
ing that  their  examination  is  morally  impossible.  (^)^ 

The  same  principle  applies  to  depositions  taken  de  bene 
esse;  and  their  publication  cannot  be  obtained,  unless  the 
witness  dies  or  is  otherwise  incapacitated  from  giving  his 
evidence  before  issue  is  joined. 

If  the  evidence  is  required  for  the  purpose  of  a  trial  at 
law,  the  order  made  is  that  the  depositions  be  published, 
and  that  the  officer  attend  with  and  produce  to  the  Court 
of  law  the  record  of  the  whole  proceedings ;  and  that  the 
parties  may  make  such  use  of  the  same  as  by  law  they 
can.(/i)  It  has  been  determined  that  it  is  no  objection  to 
the  publication  of  depositions  which  have  been  taken  in  a 
suit  to  Perpetuate  Testimony,  that  the  proceedings  for 
which  they  are  required  are  in  the  Court  of  a  foreign 
country.  (^) 

{g)  Morrison  v.  Arnold,  19  Ves.  670  ;  [Barnsdale  v.  Lo-we,  2  Russ.  &  M. 
142.] 

(A)  Attorney-General  v.  Ray,  2  Hare  518.  ♦ 

(i)  Morris  v.  Morris,  2  Ph.  205. 

^  A  bill  to  perpetuate  testimony,  also  differs  from  an  ordinary  bill,  in 
that  it  cannot  be  dismissed  for  want  of  prosecution ;  the  only  order  that 
can  be  made  is  to  compel  the  plaintiff  to  proceed  in  a  given  time  or  pay 
the  costs  :  Beavan  r.  Carpenter,  11  Sim,  22;  Wright  v.  Tatham,  2  Sim. 
459. 


BOOK  II. 


OF  THE  JURISDICTION  OF  THE  COURTS  OF  EQUITY,  IN  CASES 
IN  WHICH  THE  COURTS  OF  ORDINARY  JURISDICTION  CAN- 
NOT ENFORCE  A  RIGHT. 


*CHAPTEIl    I.  [*26] 

OF  TRUSTS,  BOTH  ORDINARY  AND  CHARITABLE. 

The  jurisdiction  of  equity  to  grant  relief  originates,  as 
we  have  seen,  in  the  occasional  inadequacy  of  the  remedy 
at  law;  and  the  instances  in  which  this  inadequacy  occurs, 
may  be  conveniently  divided  under  two  heads,  viz.,  1. 
Where  the  Courts  of  ordinary  jurisdiction  cannot  enforce 
a  right;  and  2.  Where  they  cannot  administer  it. 

It  has  been  already  stated  in  the  Introduction,  that  the 
equities  under  the  first  head  of  this  division,  viz.,  where 
the  Courts  of  ordinary  jurisdiction  cannot  enforce  a  right, 
are  those  for  performance  of  trusts  and  contracts,  for  elec- 
tion between  inconsistent  benefits,  for  completion  of  gifts 
on  meritorious  consideration  in  favor  of  the  donor's  inten- 
tion after  his  death,  for  giving  effect  to  discharges  by 
matter  in  pats  of  contracts  under  seal,  for  relief  against 
penalties  and  forfeited  mortgages,  for  re-execution  or  cor- 
rection of  instruments  which  have  been  lost  or  erroneously 


100  ADAMS's    DOCTRINE    OF    EQUITY. 

framed,  for  rescission  of  transactions  which  are  illegal  or 
fraudulent,  or  which  have  been  carried  on  in  ignorance  or 
mistake  of  material  facts,  and  for  injunction  against  irre- 
parable torts. 

The  jurisdiction  to  enforce  performance  of  trusts  arises 
where  property  has  been  conferred  upon,  and  accepted 
by,  one  person,  on  the  terms  of  using  it  for  the  benefit  of 
r*971  *^^<^^^^^-  The  former  person  or  owner  at  law,  is 
called  the  trustee ;  the  latter,  or  owner  in  equity, 
the  cestui  que  trust. 

The  principal  advantage  of  a  conveyance  on  trust  is, 
that  it  enables  the  owners  of  property  to  effectuate  dis- 
positions of  a  more  complex  character  than  is  consistent 
with  the  machinery  of  conveyances  at  law ;  and  that  it 
also  affords  the  means  of  protecting  infants  and  other  in- 
capacitated persons,  by  vesting  their  property  in  trust- 
worthy holders,  who  manage  and  apply  it  for  their  benefit. 
It  is,  on  the  other  hand,  attended  with  some  inconvenience 
and  risk,  because  it  makes  the  cestui  que  trust's  security  in 
some  degree  dependent  on  a  trustee  who  has  no  beneficial 
interest,  and  may  enable  a  fraudulent  trustee,  by  concealing 
his  fiduciary  character,  to  sell  the  property  to  a  stranger. 

The  distinction  between  a  trustee's  legal  ownership,  and^ 
the  beneficial  interest  of  a  cestui  que  trust,  is  in  some  in- 
stances recognised  even  at  law ;  and  where  the  trust  is 
created  by  will,  the  character  of  its  duties  and  the  nature 
of  the  estate  required  for  their  performance  are  allowed 
to  effect  the  construction  of  the  devise,  in  reference  both 
to  its  passing  any  estate,  and  also  in  reference  to  the  ex- 
tent and  duration  of  the  estate  passed.  («)  But,  in  so  far 
as  a  legal ,  ownership  is  conferred,  it  invests  the  trustee 

[a)  2  Jarm.  on  Wills  196  ;  Adams  on  Ejectment,  4th  ed.,  60-65. 


ORDINARY    AND    CHARITABLE    TRUSTS.  101 

with  absolute  dominion  at  law,  and  the  equitable  owner- 
ship, or  right  to  compel  performance  of  his  trust,  is  only 
cognisable  in  the  Court  of  Chancery.^ 

In  order  to  originate  a  trust,  two  things  are  essential : 
first,  that  the  ownership  conferred  be  coupled  with  a  trust, 
either  declared  by  the  parties  or  resulting  by  presumption 
of  law;  and  secondly,  that  it  be  accepted  on  those  terms 
by  the  trustee. 

The  declaration  of  a  trust  by  the  parties  is  not,  inde- 
pendently of  the  Statute  of  Frauds,  required  to  be  made 
or  evidenced  in  any  particular  way.  And  therefore,  pre- 
viously *to  that  statute,  a  trust,  whether  of  real  or  ^ 
personal  property,  might  be  declared  either  by  ^  J 
deed,  by  writing  not  under  seal,  or  by  mere  word  of 
mouth,  subject,  however,  to  the  ordinary  rule  of  law  that, 
if  an  instrument  in  writing  existed,  it  could  not  be  ex- 
plained or  contradicted  by  parol  evidence. 

With  respect,  however,  to  real  estate,  the  rule  is  altered 
by  the  Statute  of  Frauds,  and  it  is  enacted,  "that  all 
declarations  or  creations  of  trusts  or  confidences  of  any 
lands,  tenements,  or  hereditaments,  shall  be  manifested 
and  proved  by  some  writing,  signed  by  the  party  who  is 
by  law  enabled  to  declare  such  trust,  or  by  his  last  will 
in  writing;  or  else  they  shall  be  utterly  void  and  of  no 
eff'ect."  And  further,  that  "all  grants  and  assignments 
of  any  trust  or  confidence  shall  likewise  be  in  writing, 
signed  by  the  party  granting  or  assigning  the  same,  or  by 
such  last  will  or  devise."^     It  will  be  observed  that  this 

^  The  common  law  rule  still  exists  as  to  personalty  :  Martin  v.  Greer,  1 
Geo.  Decis.  109;  Lord  v.  Lowry,  1  Bailey's  Ch.  510;  Rice  ».' Burnett, 
Spears  Ch.  579 ;  Gordon  v.  Green,  10  Geo.  534. 

*  This  provision  is  in  force  in  most  of  the  United  States.  See  Hill  on 
Trustees  56,  note;  Brinnan  v.  Brinnan,  3  Green  (N.  J.)  212;  Gibson  r. 
Foote,  40  Miss.  788.     When  the  fact  that  the  trust  was  created  by  parol 


102  ADAMS's    DOCTRINE    OF    EQUITY.  * 

act  does  not  require  that  the  trust  shall  be  declared  in 
writing,  but  only  that  it  shall  be  manifested  and  proved 
by  writing.^  And  therefore,  if  the  existence  of  a  trust, 
together  with  its  precise  terms  and  subject-matter,  can 
be  proved  from  any  subsequent  acknowledgment,  written 
and  signed  by  the  trustee,  as  by  a  letter,  memorandum, 
or  recital  in  a  deed,  it  will  be  sufficient.  (J)^ 

(6)  29  Car.  2,  c.  3,  ss.  7  &  9  ;  Gardner  v.  Rowe,  2  S.  &  S.  346  ;  5  Russ. 
258. 

only,  appears  upon  the  face  of  the  bill,  it  may  be  taken  advantage  of  by 
demurrer;  where  it  does  not  so  appear  the  Statute  of  Frauds  must  be  set 
up  by  a  plea  or  in  the  answer.     See  Hill  on  Trustees,  61,  note. 

^  The  distinction  alluded  to  in  the  text  has  this  practical  importance, 
viz. :  that  the  commencement  of  the  estate  of  the  cestui  que  trust  will  not 
date  merely  from  the  execution  of  the  writing  by  which  it  is  proved,  but 
will  relate  back  to  the  time  of  its  original  creation.  Thus  where  a  parol 
declaration  of  trust  is  made  in  favor  of  one  who  afterwards  dies,  and  the 
trust  is  after  his  death  declared  in  writing,  the  written  declaration  will  be 
referred  back  to  the  date  of  the  parol  creation  so  as  to  bring  the  subject  of 
the  trust  within  the  scope  of  the  cestui  que  trusfs  will :  Ambrose  v.  Am- 
brose, 1  P.  Wms.  322.  Rights  of  bond  Jide  purchasers  without  notice  are 
of  course  protected,  and  the  distinction  noticed  above  has  been  held,  after 
some  fluctuation  in  opinion,  not  to  apply  to  post-nuptial  settlements  made 
in  pursuance  of  ante-nuptial  parol  agreements.  See  Hill  on  Trustees,  page 
57,  note  1.  In  Maine,  Massachusetts,  and  some  other  states,  trusts  must 
be  "created  and  declared"  in  writing:  Hill  on  Trustees,  page  56,  note. 
See  also,  Movan  v.  Hays,  1  Johns.  Ch.  339 ;  Johnson  v.  Ronald,  4  Munf. 
77  ;  Jackson  v.  Moore,  6  Cowen  706  ;  Flagg  v.  Mann,  2  Sumn.  486  ;  Pinney 
V.  Fellows,  15  Verm.  525  ;  2  Story's  Eq.,  sec.  972.  The  instrument  creating 
the  trust  need  not  be  executed  by  the  cestui  que  trust:  Skipwith's  Extr.  v. 
Cunningham,  8  Leigh  271. 

*  Any  writing,  no  matter  how  informal,  which  declares  what  the  trust  is, 
will  satisfy  the  requirements  of  the  statute :  Smith  v.  Matthews,  3  De  G. 
F.  &  J.  139  ;  Orleans  v.  Chatham,  2  Pick.  29  ;  Hardin  u.  Baird,  6  Litt.  346  ; 
Graham  v.  Lambert,  5  Humph.  595 ;  Gomez  v.  The  Tradesman's  Bank,  4 
Sand.  S.  €.  106  ;  Wright  v.  Douglass,  3  Selden  564  ;  Bragg  v.  Paulk,  42 
Maine  502 ;  Maxwell  v.  Whieldon's  Adm'r.,  10  Cush.  221  ;  Massey  v.  Mas" 
sey,  20  Tex.  134.  Where  the  existence  of  a  trust  is  shown  by  writing, 
parol  evidence  may,  it  seems,  be  let  in  to  show  its  terms :  Reid  v.  Reid, 
12  Rich.  (S.  C.)  Eq.  213.  See,  however,  Cook  v.  Barr,  44  N.  Y.  156,  and 
Duffy  V.  Masterton,  Id.  557.     See  also,  Fisher  v.  Fields,  10  Johns.  495 ; 


ORDINARY    AND    CHARITABLE    TRUSTS.  103 

With  respect  to  personal  estate,  including  moneys  out 
on  mortgage,  the  original  rule  continues,  and  it  is  suffi- 
cient that,  either  by  writing  or  by  word  of  mouth,  there 
should  be  a  certain  declaration  of  the  trust,  (c) 

The  intention  thus  evidenced,  whether  by  writing  or  by 
parol,  to  impose  a  trust  on  the  donee,  must  be  declared 
with  certainty;  and  there  must  also  be  a  certain  declara- 
tion of  its  terras,  Adz.,  of  the  property  on  which  the  trust 
is  to  attach,  the  parties  for  whom  the  benefit  is  meant, 
and  the  ^interests  which  they  are  respectively  to  rHcoq-i 
take.^  If  there  be  uncertainty  in  this  latter  respect, 
but  it  be  sufficiently  certain  that  a  trust  was  meant,  and 
not  a  gift  for  the  donee's  benefit,  the  case  will  fall  under 
a  different  rule,  and  there  will  be  a  resulting  trust  for  the 
donor  by  operation  of  law. 

The  certainty,  however,  of  a  trust  is  not  necessarily 

(c)  Benbow  v.  Townsend,  1  M.  &  K.  596 ;  McFadden  r.  Jenkjns,  1  Hare 
458  ;  1  Ph.  153. 

Orleans  v.  Chatham,  2  Pick.  29 ;  Dale  ».  Hamilton,  2  Phil.  266  ;  Maccub- 
bin  F.  Cromwell,  7  Gill  &  Johns.  157  ;  Steere  v.  Steere,  5  Johns.  Ch.  1 ; 
Unitarian  Soc.  v.  Woodbury,  2  Shepley  281  ;  Walraven  v.  Lord,  2  Patt.  & 
H,  547  ;  Bankhead's  Trust,  2  Kay  &  John.  560;  Ex  parte  Boyd,  3  Jurist 
N.  S.  897  ;  Pinney  v.  Fellows,  15  Verm.  525  ;  Menude  v.  Delaire,  2  Dessaus. 
564;  Rutledge  v.  Smith,  1  McC.  Ch.  119;  Elliott  v.  Morris,  1  Harp. 
Eq.  281 ;  Fleming  et  al.  v.  Donahoe  et  al.,  5  Hammond  256  ;  Harrison  v. 
Mennomy,  2  Edw.  Ch.  251 ;  Slocum  v.  Marshall,  2  Wash.  C.  C.  398. 

^  Slocum  V.  Marshall,  2  Wash.  C.  C.  398 ;  Steere  v.  Steere,  5  Johns.  Ch. 
1 ;  Dorsey  v.  Clarke,  4  H.  &  Johns.  551 ;  Mercer  v.  Stark,  1  Sm.  &  Marsh. 
Ch.  479 ;  Knight  v.  Boughton,  11  CI.  &  Fin.  513 ;  Briggs  ».  Penny,  3  Macn. 
&  Gord.  546 ;  Williams  v.  Williams,  1  Sim.  N.  S.  358  ;  Smith  v.  Matthews, 
3  De  G.,  F.  &  J.  139.  Besides  the  three  requisites  enumerated  in  the  text^ 
a  fourth  has  been  added  by  recent  English  authorities ;  certainty  in  the 
manner  in  which  the  trust  is  to  be  performed :  Knight  v.  Boughton,  ut 
sup. ;  Reeves  v.  Baker,  18  Bear.  372 ;  and  this,  it  was  said  in  the  latter 
case,  may  be  referred  partly  to  the  subject-matter,  and  partly  to  the  object 
of  the  trust,  and  reduced  to  one  or  other  of  them.  The  mere  use  of  the 
words  "  trust"  or  "  trustee  "  will  not  necessarily  create  a  trust:  Brown  v. 
Combs,  5  Dutch.  36  ;  Hill  on  Trustees  65,  note. 


104  ADAMS's    DOCTRINE    OF    EQUITY. 

affected  by  the  circumstance  that  it  has  been  declared  in 
the  form  of  a  power,  enabling  the  trustee  to  give  the  estate 
to  the  parties  interested,  instead  of  an  immediate  gift  to 
them :  nor  by  the  use  of  precatory  or  recommendatory 
words,  instead  of  more  imperative  language.  And  on  the 
other  hand,  a  trust  is  not  necessarily  created,  because  the 
formal  language  of  a  trust  is  used,  if  a  contrary  intent 
appear  from  the  gift.^ 

The  creation  of  trusts  in  the  form  of  powers  occurs 
where  no  positive  direction  is  given  that  the  trustee  shall 
hold  for  the  parties  interested,  but  he  is  authorized  to 
give  them  an  interest,  if  he  see  fit.  Such  a  power  as  this 
does  not  necessarily  constitute  a  trust;  for  it  may  be 
absolutely  discretionary  in  the  donee,  and  one  which  he 
cannot  be  compelled  to  execute ;  but  on  the  other  hand, 
it  may  be  given  him  in  a  different  character,  and  as  one 
which  he  is  intrusted  and  bound  to  execute.  If  the  con- 
text of  the  gift  establish  this  latter  construction,  he  has 
not  a  discretion  whether  he  will  execute  his  power  or  not, 
but  if  he  neglect  his  duty,  the  Court  will,  to  a  certain 
extent,  discharge  it  in  his  stead.  It  will  not,  however,  in 
so  doing,  assume  an  arbitrary  discretion,  although  such  a 
discretion  may  have  been  given  to  the  trustee,  but  it  will 
adopt  such  general  maxim  as  under  the  circumstances 
appears  applicable,  e.  g.,  that  a  fund  given  for  the  benefit 
of  "  relations"  shall  be  distributed  among  those  who  are 
within  the  Statute  of  Distributions,  although  the  donee 
might  have  selected  out  of  a  wider  class.  The  leading 
case  on  this  subject  is  one  where  leaseholds  were  be- 
queathed to  a  man,  with  a  direction  to  make  certain 
payments  out  of  the  rents  :  and  the  testator  *em- 
L      -•    powered  him  to  employ  the  residue  for  such  of  his 

» Richardson  v.  Inglesby,  13  Rich.  (S.  C.)  Eq.  59. 


ORDINARY    AND    CHARITABLE    TRUSTS.  105 

nephew's  children  as  he  should  think  proper.  On  the 
trustee's  failure  so  to  employ  the  residue,  it  was  decreed 
to  be  a  trust  for  all  the  children.^  There  is  another  class 
of  cases,  apparently  similar  to  these,  but  based  on  an 
entirely  distinct  principle,  where  a  non-compulsory  power 
of  appointment  has  been  conferred,  but  the  context  has 
implied  a  gift  in  default  of  appointment  to  the  persons 
who  in  the  event  of  execution  would  have  been  objects 
of  the  power.  Such,  for  instance,  is  a  gift  to  children  and 
their  issue  in  such  proportions  as  A.  shall  appoint,  under 
which  it  has  been  held  that  in  default  of  appointment  the 
children  took  by  implication  estates  tail.  The  distinction 
between  the  two  cases  is,  that  in  the  one  the  objects  of 
the  power  take,  notwithstanding  the  trustee's  failure  to 
appoint,  because  his  failure  was  a  neglect  of  duty  ;  in  the 
other  they  take,  not  because  he  was  bound  to  appoint, 
but  because  it  is  adjudged,  on  perusal  of  the  gift,  that  an 
express  trust  was  by  mistake  or  carelessness  omitted,  (c?)^ 

(d)  Brown  v.  Higgs,  8  Ves.  561 ;  Grant  v.  Lynman,  4  Russ.  292;  Bur- 
roughs V.  Philcox,  5  M.  &  C.  73 ;  2  Sug.  on  Powers,  7th  ed.  157. 

^  See  accordingly,  Withers  v.  Yeadon,  1  Rich.  Eq.  324  ;  Collins  v.  Car- 
lisle, 7  B.  Monr.  13 ;  Gibbs  v.  Marsh,  2  Metcalf  243  ;  Miller  v.  Meetch,  8 
Penn.  St.  417;  Whitehurst  v.  Harker,  2  Ired.  Eq.  292  ;  Penny  v.  Turner, 
2  Phillips  493.  Where  the  class  is  ascertained,  the  rule  of  division  by  the 
court  is,  of  course,  equality. 

*  A  good  illustration  of  the  rule  of  distribution  which  obtains  in  default 
of  an  execution  of  a  power  by  a  donee  in  trust,  will  be  found  in  the  case 
of  Salusbury  v.  Denton,  3  K.  &  J.  529.  There  a  testator  gave  a  fund  to 
his  widow,  to  be  disposed  of  by  her  as  to  part  to  a  charity,  and  as  to  the 
remainder  among  such  relations  as  she  should  select ;  and  the  widow  died 
without  making  any  disposition  of  the  fund.  It  was  held  that  the  charity 
was  entitled  to  one  moiety,  and  that  the  other  should  be  divided  among 
the  parties  entitled  under  the  Statute  of  Distributions.  See,  also,  White's 
Trusts,  Johnson  656;  Fordyce  v.  Bridges,  2  Phill.  497,  and  Brook  v. 
Brook,  3  Sm.  &  Giff.  280.  In  Smith  v.  Bowen,  35  New  York  83,  there 
was  a  devise  "  to  my  beloved  wife,  Martha,  to  be  used  and  disposed  of  at 
her  discretion,  for  the  benefit  of  herself  and  my  three  daughters;"  and  it 
was  held  that  the  words  gave  one-fourth  to  the  wife  absolutely,  and,  as  to 


106  ADAMS's    DOCTRINE    OF    EQUITY. 

The  use  of  precatory  or  recommendatory  words,  whether 
arising  from  want  of  due  consideration,  or  from  an  unwil- 
lingness to  use  language  implying  distrust,  or  from  an  in- 
tention to  give  a  control  over  the  suggested  disposition,  is 
not  unfrequent  in.  wills;  and  we  often  meet  with  such 
expressions  as  "  I  recommend,"  "  I  entreat,"  or  "  I  de- 
sire "  that  such  a  thing  be  done,  or  "  I  have  no  doubt,  or 
well  know,"  that  it  will  be  done.^  In  these  cases  the 
mere  grammatical  construction  of  the  words  is  not  suffi- 
cient to  determine  whether  a  trust  exists.  It  is  clear 
that  words  simply  intimating  an  expectation,  provided 
their  object  be  expressed  with  sufficient  certainty,  may 
operate  as  imperative  on  the  person  to  whom  they  are 
addressed.  But  although  they  may  create  a  trust,  yet 
they  have  not  necessarily  that  effect.  They  are  in  them- 
selves of  a  flexible  character,  and  must  give  way  if  the 
p;j;o-|-|  imperative  construction  *be  inconsistent  with  any 
positive  provision  in  the  will,  or  if  it  appear  from 
the  general  context  that  the  testator  meant  to  depend  on 
the  justice  or  gratitude  of  the  donee.  The  question, 
therefore,  in  each  particular  case  is  merely  of  construc- 
tion on  the  terms  of  the  instrument,  (e)^ 

(e)  Wright  v.  Atkyns,  17  Ves.  255  ;  19  Ves.  299  ;  Shaw  v.  Lawless,  1 
Lloyd  &  Goold,  558  ;  5  CI.  &  F.  129  ;  Knight  v.  Boughton,  11  CI.  &  F.  513 ; 
Knott  V.  Cottee,  2  Ph.  192  ;  2  Sug.  on  Pow.  171. 

the  other  three-fourths,  created  a  trust  in  favor  of  the  daughters,  which 
under  the  statute  in  New  York,  was  turned  into  a  power  in  trust.  But 
although  a  trust  will  sometimes  be  created  in  spite  of  the  failure  of  the 
donee  of  the  power  to  exercise  his  discretion,  yet  In  re  Eddowes,  1  Dr.  & 
Sm.  395,  shows  that  where  there  is  nothing  to  point  out  with  certainty  in 
whose  favor,  or  in  what  shares  a  gift  was  intended  in  default  of  the  execu- 
tion of  the  power,  no  trust  can  be  implied. 

^  "  Having  confidence,"  Dresser  v.  Dresser,  46  Maine  48  ;  "  Wish  and 
will,"  McRee's  Adm'r.  v.  Means,  34  Alab.  349. 

^  There  has  been  some  fluctuation  in  the  modern  English  authorities,  on 


ORDINARY    AND    CHARITABLE    TRUSTS.  107 

The  non-creation  of  a  trust  in  the  donee  notwithstand- 
ing that  a  trust  is  formally  declared,  occurs  principally  in 
conveyances  for  payment  of  debts,  where  the  language 
used,  if  taken  in  its  literal  acceptation,  would  constitute 
the  creditors  cestuis  que  trustent,  and  would  entitle  them 
to  enforce  an  application  of  the  fund.  It  has  been  de- 
cided, however,  that,  notwithstanding  the  similarity  of 

the  subject  of  precatory  trusts,  and  two  classes  of  cases  have  consequently 
arisen,  one  leaning  in  favor  of  aflFecting  the  conscience  of  the  donee  with  a 
trust  by  the  use  of  recommendatory  words,  the  other  having  an  opposite 
tendency.  Of  the  former  class,  instances  will  be  found  in  Bernard  v. 
Minshull,  Johnson  276  ;  Shovelton  v.  Shovelton,  32  Beav.  143 ;  Gully  v. 
Cregoe,  24  Id.  185  •,  Ward  v.  Grey,  26  Id.  485  ;  Proby  v.  Landor,  28  Id. 
504 ;  Liddard  v.  Liddard,  28  Id.  266  ;  Brook's  Will,  34  L.  J.  Ch.  616 ;  and 
Constable  v.  Bull,  3  De  G.  &  Sm.  411  ;  while  for  examples  of  the  latter 
class  the  reader  may  refer  to  Briggs  v.  Penny,  3  Macn.  &  G.  546 ;  John- 
ston V.  Rowlands,  2  De  G.  &  Sm.  356 ;  Webb  v.  Wools,  2  Sim.  N.  S.  267 ; 
Reeves  v.  Baker,  18  Beav.  372,  and  Hood  v.  Oglander,  34  L.  J.  Ch.  528 ; 
Eaton  V.  Watts,  5  Eq.  L.  R.  151.  The  former  class  probably  includes  the 
more  recent  and  better  considered  decisions.  See,  also,  the  remarks  in 
Hawkins  on  Wills,  page  160. 

In  the  United  States,  also,  it  is  impossible  to  reconcile  all  the  authori- 
ties. The  rule  in  Pennsylvania  is  that  precatory  expressions  in  a  will  are 
not,  primd  facie,  sufficient  to  create  a  trust:  Pennock's  Estate,  20  Penna. 
St.  268  ;  Walker  v.  Hall,  34  Id.  483  ;  Kinter  v.  Jenks,  43  Id.  445,  and  Jaur- 
etche  V.  Proctor,  48  Id.  466;  Second  Church  v.  Disbrow,  52  Id.  219; 
Burt  V.  Ilerron,  66  Id.  400 ;  Van  Duyne  v.  Van  Duyne,  1  McCarter  (N.  J.) 
397  ;  and  so  in  Connecticut:  Gilbert  v.  Chapin,  19  Conn.  351,  where  the 
earlier  case  of  Bull  v.  Bull,  8  Conn.  47,  was  disapproved  ;  though  even  in 
that  state  mere  discretion  in  regard  to  the  selection  of  the  objects  or  the 
distribution  of  the  subject  of  a  devise  is  not  inconsistent  with  a  trust ;  and 
see  Harper  v.  Phelps,  21  Conn.  257.  See,  also,  Ellis  v.  Ellis,  15  Alab. 
296.  But  a  more  liberal  doctrine  as  to  precatory  words  has  been  held  in 
Erickson  v.  Willard,  1  N.  H.  217 ;  Lucas  v.  Lockhart,  10  Sm.  &  Marsh. 
466  ;  Collins  v.  Carlisle,  7  B.  Mon.  14;  Harrison  v.  Harrison,  2  Gratt.  1  ; 
McRee's  Adm'r.  v.  Means,  34  Alab.  349,  and  Dresser  v.  Dresser,  46  Maine 
48  ;  Warner  v.  Bates,  98  Mass.  274  ;  Cook  v.  Ellington,  6  Jones  Eq.  (N. 
C.)  371.  The  student  will  find  this  subject  discussed  in  the  notes  to  Hard- 
ing V.  Glyn,  2  Lead.  Cas.  in  Eq.  789. 


108  ADAMS's    DOCTRINE    OF    EQUITY. 

form,  the  transaction  is  substantially  different  from  the 
creation  of  a  trust ;  and  that  a  man  who,  without  com- 
munication with  his  creditors,  puts  property  into  the 
hands  of  a  trustee  for  the  purpose  of  paying  his  debts, 
proposes  only  a  benefit  to  himself,  and  not  to  his  cred- 
itors. The  nominal  trustee,  therefore,  is  merely  his  agent; 
and  the  nominal  trust  is  only  a  method  of  applying  his 
own  property  for  his  own  convenience.  (/)^ 

{/)  Garrard  v.  Lord  Lauderdale,  3  Sim.  1 ;  Bill  v.  Cureton,  2  M.  &  K. 
503;  Hughes  v.  Stubbs,  1  Hare  476  ;  Gibbs  ».  Glamis,  11  Sim.  584;  Wild- 
ing V.  Richards,  1  Coll.  655 ;  [Simmonds  v.  Palles,  2  Johnes  &  Lat.  489 ; 
Smith  V.  Keating,  6  C.  B.  (60  E.  C.  L.  R.)  136.] 

^  The  distinction  taken  in  the  text,  and  for  which  Garrard  v.  Lord  Lau- 
derdale is  the  leading  authority,  between  a  voluntary  assignment  for  cred- 
itors and  an  ordinary  trust,  is  very  important  in  its  results ;  for,  if  it  be 
sound,  the  assignment  before  it  is  acted  on  constitutes  merely  a  power  in 
the  trustee,  revocable  at  pleasure,  invalid  against  general  creditors,  and 
not  enforceable  in  equity  by  those  who  are  provided  for  thereby.  Some 
of  the  more  recent  cases,  however,  seem  to  indicate  that  if  the  trust  be 
communicated  to  the  creditors  it  will  cease  to  be  revocable,  though  not 
executed  by  them  ;  at  any  rate,  such  is  the  case  where  the  trustee  has  also 
taken  possession  of  the  property :  Griffiths  v.  Ricketts,  7  Hare  307 ;  Har- 
land  V.  Binks,  15  Q.  B.  (69  E.  C.  L.  R.)  713 ;  Smith  v.  Hurst,  10  Hare  30  ; 
Acton  V.  Woodgate,  2  Myl.  &  K.  495.  Where  there  is  an  actual  execution 
by  the  creditors,  the  trust  becomes  irrevocable :  Mackinnon  v.  Stewart,  1 
Sim.  N.  S.  76 ;  see  Synnot  v.  Simpson,  5  H.  L.  Cas.  121 ;  Montefiori  v. 
Browne,  7  Ibid.  241 ;  Whitmore  v.  Turquand,  1  Johns.  &  H.  444 

In  the  United  States,  such  assignments,  before  the  assent  of  the  benefi- 
ciaries, have,  in  some  cases,  been  treated  as  mere  naked  powers :  Brooks 
V.  Marbury,  11  Wheat.  78;  Watson  v.  Bagaley,  12  Penna.  St.  164;  yet 
the  general  current  of  authority  is  clear,  that  the  creditors,  on  learning  of 
the  existence  of  the  trust  deed,  may  proceed  at  once  to  enforce  it  in  equity, 
before  becoming  formally  parties  thereto  ;  Moses  v.  Murgatroyd,  1  Johns. 
Ch.  119 ;  Shepherd  v.  McEvers,  4  Id.  136  ;  Weir  v.  Tannehill,  2  Yerg.  57  ; 
Pearson  v.  Rockhill,  4  B.  Monr.  296 ;  Robertson  v.  Sublett,  6  Hump.  313  ; 
Ingram  ».  Kirkpatrick,  6  Ired.  Ev.  463  ;  Pratt  v.  Thornton,  28  Maine  355. 
See  Burrill  on  Assignments  280,  306,  for  a  discussion  of  this  subject. 

Where  a  firm  made  a  trust  deed  for  the  benefit  of  its  creditors,  which 
was  duly  registered,  and  afterwards  made  a  second  deed  revoking  the 


ORDINARY    AND    CHARITABLE    TRUSTS.  109 

A  resulting  trust  by  presumption  of  law  arises  where 
the  legal  ownership  of  property  has  been  disposed  of,  but 
it  is  apparent  from  the  language  of  the  disposition  itself, 
or  from  the  attendant  circumstances,  that  the  equitable 
ownership  or  beneficial  interest  was  intended  to  go  in  a 
different  channel,  although  there  is  no  declaration,  or  no 
sujQficient  declaration,  as  to  what  that  channel  should  be. 
In  this  case  a  trust  is  implied  for  the  real  owner,  termed 
a  resulting  trust,  or  trust  by  operation  of  law.^  And 
such  a  trnst,  although  relating  to  real  estate,  is  exempted 
by  a  proviso  in  the  Statute  of  Frauds  from  the  necessity 
of  being  declared  or  evidenced  in  writing.^  The  enact- 
ment is,  that  "where  any  conveyance  shall  be  made  of 
any  lands  or  *tenements  by  which  a  trust  or  con-  r*qo-i 
fidence  shall  or  may  arise  or  result  by  implication 
or  construction  of  law,  or  be  transferred  or  extinguished 
by  act  or  operation  of  law,  then  and  in  every  such  case 
such  trust  or  confidence  shall  be  of  the  like  force  and 
effect  as  the  same  would  have  been  if  this  statute  had  not 
been  made."(y) 

{g)  29  Car.  2,  c.  3,  s.  8. 

first,  it  was  held  that  the  rights  of  the  parties  to  the  first  deed  became  fixed 
and  vested  by  its  execution  and  registration,  subject  to  the  election  of  the 
beneficiaries  as  to  whether  they  would  accept  or  reject  its  provisions,  and 
that  the  firm  had  no  power  to  revoke  it :  Furman  v.  Fisher,  4  Cold.  (Tenn.) 
626. 

^  It  must  be  borne  in  mind  that  resulting  trusts  of  this  description  arise 
only  upon  voluntary  dispositions.  Where  there  is  a  valuable  consideration 
no  trust  will  result  so  as  to  defeat  the  operation  of  the  deed :  Brown  r. 
Jones,  1  Atk.  188.  See  also  Ridout  r.  Dowding,  1  Atk.419;  Hill  on  Trus- 
tees 179  ;  Dennis  r.  McCagg.  32  111.  429. 

'  Resulting  trusts  are  not  within  the  Statute  of  Frauds  in  the  difierent 
states ;  nor  are  they  executed  by  the  Statute  of  Uses.  In  some  states,  as 
in  New  York,  Minnesota  and  Wisconsin,  trusts  of  this  description  have 
been  abolished,  or  confined  within  narrow  limits. 


110  ADAMS's    DOCTRINE    OF    EQUITY. 

Resulting  trusts  of  the  first  class,  viz.,  those  where  the 
intention  to  sever  the  legal  and  equitable  ownership  is 
apparent,  either  directly  or  indirectly,  from  the  language 
of  the  gift,  occur  for  the  most  part  in  dispositions  by  will. 
They  are  not  necessarily  restricted  to  such  dispositions  ; 
for  whenever,  in  any  conveyance  or  disposition  of  pro- 
perty, it  is  apparent  that  any  beneficial  interest  was  not 
intended  to  accompany  the  legal  ownership,  but  no  other 
sufficient  and  effectual  gift  of  it  has  been  made,  it  will 
result  back  to  the  original  owner.  But  in  gifts  by  deeds, 
which  are  generally  made  with  full  deliberation  and  under 
professional  advice,  this  circumstance  does  not  often 
occur.     In  gifts  by  will  it  is  not  unfrequent. 

In  gifts  of  this  class,  the  bequest  of  the  beneficial  in- 
terest is  sometimes  intentionally  deferred ;  as  where  pro- 
perty is  devised  to  a  trustee  "  upon  trusts  to  be  declared 
by  a  subsequent  codicil,"  and  no  such  declaration  is  made ; 
sometimes  a  trust  is  declared,  but  lapses  by  the  death  of 
the  beneficial  donee,  or  is  invalidated  by  its  uncertainty, 
by  its  illegal  character,  or  by  the  refusal  of  the  donee  to 
accept  the  benefit ;  and  sometimes  a  partial  trust  is  de- 
clared, e.  g.,  for  payment  of  debts,  which  does  not  exhaust 
the  whole  estate,  and  the  surplus  is  left  without  any  ex- 
press disposition.  In  this  latter  instance,  it  may  appear 
by  the  context  of  the  will,  or  by  the  aid  of  parol  evi- 
dence, that  the  devisee  was  intended  to  take  the  surplus ; 
but  the  prima  facie  inference  is,  that  the  creation  of  the 
partial  trust  was  the  sole  object,  and  that  the  equitable 
interest  undisposed  of  is  in  the  nature  of  a  resulting  trust.^ 

1  See  Flint  v.  Warren,  16  Sim.  124 ;  Onslow  v.  Wallis,  1  H.  &  Tw.  513  : 
Ralston  v.  Telfair,  2  Dev.  Eq.  255  ;  Huston  b.  Hamilton,  2  Binn.  387  *,  King 
V.  Mitchell,  8  Pet.  326  ;  SheaflFer's  App.,  8  Barr  38 ;  Ilawley  v.  James,  5 
Paige  323 ;  Floyd  v.  Barker,  1  Id.  486 ;  Frazier  v.  Frazier,  2  Leigh  642. 


ORDINARY    AND    CHARITABLE    TRUSTS.  Ill 

*In  all  cases  of  this  kind,  the  rule  of  law  is  that  r^oq-i 
the  beneficial  interest  undisposed  of  results  back  to 
the  original  owner,  or  to  his  representatives,  real  or  per- 
sonal, according  to  the  nature  of  the  property. 

If,  for  example,  a  testator  devises  land  for  purposes 
altogether  illegal,  or  which  altogether  fail,  the  heir-at-law 
takes  it  as  undisposed  of.  If  the  purposes  are  partially 
illegal  or  partially  fail,  or  if  they  require  the  application 
of  a  part  only  of  the  land  devised,  the  heir  takes  so  much 
of  the  land  or  of  its  produce  as  was  destined  for  the  in- 
effective purpose,  or  so  much  as  is  not  required  for  the 
purpose  of  the  will.  And  c  converso,  if  there  be  a  be- 
quest of  personal  property  for  purposes  which  are  alto- 
gether or  partially  illegal,  or  which  altogether  or  partially 
fail,  the  next  of  kin  are  entitled  to  it,  or  to  so  much  of  it 
as  cannot  or  need  not  be  applied  to  the  purposes  of  the 
wilL(^) 

Resulting  trusts  of  the  second  class,  viz.,  where  the 
intention  to  sever  the  legal  and  equitable  ownership  is 
apparent  from  the  attendant  circumstances,  occur  where 
an  estate  has  been  purchased  in  the  name  of  one  person, 
and  the  purchase-money  or  consideration  has  proceeded 

(A)  Collins  V.  Wakemann,  2  Ves.  J.  683  ;  Muckleston  v.  Brown,  6  Ves. 
52 ;  Fowler  v.  Garlike,  1  R.  &  M.  232 ;  Ackroyd  v.  Smithson,  1  B.  C.  C. 
503  ;  King  v.  Denison,  1  Ves.  &  B.  260 ;  Clark  v.  Hilton,  L.  R.  2  Eq.  814 ; 
Tregonwell  v.  Sydenham,  3  Dow.  194 ;  Sidney  v.  Shelley,  19  Ves.  352 ; 
Cogan  r.  Stephens,  Lewin  on  Trustees,  Appendix  vii ;  1  Jarm.  on  Wills, 
c.  xviii ;  Cook  v.  Hutchinson,  1  Keen  42,  50  ;  Gordon  t'.  Atkinson,  1  De  G. 
&  Sm.  478  ;  Taylor  r.  Taylor,  3  De  G.,  Macn.  &  G.  190 ;  see  Barrs  v. 
Fewkes,  2  Hem.  &  M.  60  ;  11  Jur.  N.  S.  669  ;  Hill  on  Trustees  119,  note ; 
Craig  V.  Leslie,  3  Wheat.  563  ;  Burr  v.  Sim,  1  Whart.  263 ;  SheaflFer's  App. 
8  Penn.  St.  42  ;  King  v.  Mitchell,  8  Peters  326 ;  Lindsay  f.  Pleasants,  4 
Ired.  Eq.  320 ;  Pratt  r.  Taliaferro,  3  Leigh  419 ;  Wood  v.  Cone,  7  Paige 
472;  Snowhill  r.  Snowhill,  1  'Green  Ch.  30;  Woodgate  r.  Fleet,  44  N.  Y. 
1 ;  Harrison  v.  Harrison,  36  N.  Y.  543.     Infra,  Conversion. 


112  ADAMS's    DOCTRINE    OF    EQUITY. 

from  another.  In  this  case  the  presumption  of  law  is, 
that  the  party  paying  for  the  estate  intended  it  for  his 
own  benefit,  and  that  the  nominal  purchaser  is  a  mere 
trustee.^ 

'  It  is  a  general  principle,  that  where  on  a  purchase  of  property,  the 
conveyance  of  the  legal  estate  is  taken  in  the  name  of  one  person,  but  the 
purchase-money  is  paid  or  secured  by  another,  at  the  same  time  or  pre- 
viously, and  as  part  of  one  transaction,  and  the  parties  are  strangers,  not 
in  certain  relations  of  blood,  a  trust  results  in  favor  of  him  who  supplies 
the  purchase-money :  Buck  v.  Pike,  11  Maine  9  ;  Boyd  v.  McLean,  1  John. 
Ch.  582  ;  Jackman  v.  Ringland,  4  W.  &  S.  146  ;  Livermore  v.  Aldrich, 
5  Cush,  435 ;  Frederick  v.  Haas,  5  Nevada  389 ;  Fleming  v.  McHall,  47 
111.  282  ;  Dryden  v.  Hanway.  31  Md.  254  ;  Millard  v.  Hathaway,  27  Cal. 
119  ;  Mallory  v.  Mallory,  5  Bush  (Ky.)  464,  and  a  great  number  of  other 
cases,  many  of  which  may  be  found  cited  in  Hill  on  Trustees,  4  Am.  ed. 
147,  in  note. 

It  is  also  held  in  the  United  States,  by  analogy,  that  a  purchase  by  a 
man  in  his  own  name,  with  funds  in  his  hands  in  a  fiduciary  capacity, 
creates  a  resulting  trust  in  favor  of  those  whose  money  is  thus  employed ; 
as  in  the  case  of  a  trustee,  a  partner,  an  agent  for  purchase,  an  executor, 
a  guardian,  the  committee  of  a  lunatic,  and  the  like  :  Philips  v.  Crammond, 
2  Wash.  C.  C.  441 ;  Kirkpatrick  v.  McDonald,  11  Penn.  St.  393 ;  Baldwin 
V.  Johnson,  Saxton  441  j  Smith  v.  Ramsey,  1  Gilm.  373 ;  Pugh  v.  Currie, 

5  Alab.  446 ;  Edgar  v.  Donnelly,  2  Munf.  387 ;  Martin  v.  Creer,  1  Geo. 
Dec.  109;  Freeman  v.  Kelley,  1  Hoff.  Ch.  90;  Moffitt  v.  McDonald,  11 
Humph.  457 ;  Turner  v.  Petigrew,  6  Id.  438 ;  Piatt  v.  Oliver,  2  McLean 
267  ;  Smith  v.  Burnham,  3  Sumn.  435 ;  Harrisburg  Bank  v.  Tyler,  3  W. 

6  S.  373 ;  Wilhelm  v.  Folmer,  6  Barr  296 ;  McCrory  v.  Foster,  1  Clarke 
(la.)  271 ;  Eshleman  v.  Lewis,  49  Penn.  St.  410 ;  Day  v.  Roth,  18  N.  Y.  448  ; 
Wales  V.  Bogue,  31  111.  464;  Harper  v.  Archer,  28  Miss.  212;  Church  v. 
Sterling,  16  Conn.  388 ;  Hutchinson  v.  Hutchinson,  4  Dessausi  77  ;  Follansbe 
V.  Kilbreth,  17  111.  522 ;  Bridenbecker  v.  Lowell,  32  Barb.  9 ;  Pugh  v. 
Pugh,  9  Ind.  132;  Methodist  Church  v.  Wood,  5  Hamm.  283;  Garrett  v. 
Garrett,  1  Strob.  Eq.  96  ;  Wallace  v.  Duflfield,  2  S.  &  R.  521 ;  Claussen 
V.  La  Franz,  1  Clarke  (la.)  226 ;  Schaffner  v.  Grutzmacher,  6  Id.  137; 
Reid  V.  Fitch,  11  Barb.  S.  C.  399 ;  Caplinger  v.  Stokes,  Meigs  175 ;  Coder 
V.  Huling,  27  Penn.  St.  84  ;  Harper  v.  Archer,  28  Miss.  212  ;  Baumgartner 
V.  Guessfield,  38  Mo.  36;  Johnson©.  Dougherty,  3  Green  (N.  J.)  406; 
Harrold  v.  Lane,  53  Penn.  St.  268 ;  Beegle  v.  Wentz,  55  Penn.  St.  369  ;  Cecil 
Bank  v.  Snively,  23  Md.  253.  So  of  a  husband  purchasing  with  his  wife's 
separate  property :  Methodist  Church  r.  Jaques,  1  John.  Ch.  450  ;  3  Id.  77  ; 


ORDINARY    AND    CHARITABLE    TRUSTS.  113 

This  presumption  exists  in  all  cases  where  the  convey- 
ance of  a  legal  estate  is  made  to  one  who  has  not  really 


Brooks  V.  Dent,  1  Md.  Ch.  523  ;  Dickinson  v.  Codwise,  1  Sandf.  Ch.  214 ; 
Pinney  v.  Fellows,  15  Verm.  525  ;  Barron  v.  Barron,  24  Id.  375  ;  Prichard 
15.  Wallace,  4  Sneed  405 ;  Resor  v.  Resor,  9  Ind.  347  ;  Miller  v.  Blackburn, 
14  Ind.  62;  Lathrop  v.  Gilbert,  2  Stockt.  344;  Filman  v.  Divers,  31  Penn. 
St.  429  ;  Kline's  Appeal,  39  Id.  463.  It  is  to  be  observed,  however,  that 
where  such  employment  of  fiduciary  funds  is  unauthorized  and  wrongful 
in  itself,  the  parties  affected  thereby  are  not  confined  to  the  mere  enforce- 
ment of  a  resulting  trust  in  the  property  thus  tortiously  acquired,  but  may, 
instead  thereof,  elect  to  take  the  money  back.  See  Oliver  v.  Piatt,  3  How. 
U.  S.  333 ;  Bonsall's  Appeal,  1  Rawle  266.  Indeed,  under  such  circum- 
stances, where  the  investment  of  the  money  is  manifestly  hostile  to  the 
original  trust,  it  is  even  held  in  some  English  decisions,  approved  by  Mr. 
Justice  Gibson,  in  Wallace  v.  Duffield,  2  S.  &  R.  521 ;  Harrisburg  Bank 
V.  Tyler,  3  W.  &  S.  373 ;  and  in  Wallace  v.  McCullough,  1  Rich.  Eq.  426, 
that  no  technical  trust  is  created,  and  that  the  beneficiaries  can  only  claim 
a  lien  for  their  money  upon  the  property  acquired,  and  a  consequent  de- 
cree for  a  sale.  But  this  is  contrary  to  the  uniform  current  of  authority 
in  this  country,  as  before  stated  ;  and  inconsistent  in  its  practical  applica- 
tion, with  the  cardinal  rule,  that  no  fiduciary  can  be  permitted  to  profit  by 
a  violation  of  his  duties.  See  note  to  Woollam  v.  Hearne,  2  Lead.  Cas. 
in  Eq.  404. 

The  doctrines  w^ith  regard  to  the  ordinary  resulting  trust,  are  applicable 
to  personal  as  well  as  real  estate,  to  choses  in  action,  as  stock  and  annuities, 
as  well  as  in  possession :  Sidmouth  v.  Sidmouth,  2  Beav.  454 ;  Ex  parte 
Houghton,  17  Ves.  253  ;  but  not,  it  has  been  held,  to  property  perishable 
in  its  nature  :  Union  Bank  v.  Baker,  8  Humph.  447. 

They  are  also  applicable  where  the  purchase-money  is  paid  by  several 
jointly,  and  the  legal  estate  taken  in  the  name  of  one  only :  Botsford  v. 
Burr,  2  John.  Ch.  405  ;  Pierce  v.  Pierce,  7  B.  Monr.  433  ;  Stewart  v.  Brown, 
2  S.  &R.  461;  Shoemaker  v.  Smith,  11  Humph.  81;  Powell  v.  Manu- 
facturing Co.,  3  Mason  347 ;  Purdy  v.  Purdy,  3  Md.  Ch.  547  ;  Letcher 
V.  Letcher,  4  J.  J.  Marsh.  590 ;  Buck  v.  Swazey,  35  Maine  41 ;  but  where 
it  was  agreed  verbally  that  any  one  of  three  persons  should  buy  in  and 
hold  for  the  others,  and  one  bought  and  paid  the  purchase-money,  it  was 
held  that  there  was  no  resulting  trust :  Farnhara  v.  Clements,  51  Maine 
426  ;  Sheldon  ».  Sheldon,  3  Wis.  699  ;  Morey  v.  Ilerrick.  18  Penn.  St.  129  ; 
see  also,  Meason  v.  Kaine,  63 'Penn.  St.  335.  But  the  part  of  the  pur- 
chase-money furnished  by  one  who  thus  claims  a  resulting  trust  must 
be  a  definite  one  :  Baker  v.  Vining,  30  Maine  121  ;  Sayre  r.  Townseuds, 
8 


114  ADAMs's    DOCTRINE    OF    EQUITY. 

jidv.'inced  the  price.  And  it  is  equally  applicable  whether 
Huch  conveyance  be  in  the  name  of  a  stranger  only,  with- 

15  Wond.  047.  Though  it  has  been  held  that  the  presumption  was  in 
the  first  instance,  in  such  case,  that  the  funds  were  supplied  in  equal 
pro[)<)rtionH  by  all :  Shoenuikor  v.  Smith,  11  Humph.  HI. 

In  order  to  create  a  resulting  trust,  the  money  must  have  been  actually 
paid  by  the  alleged  cestui  que  trtcst,  out  of  his  own  or  borrowed  funds,  or 
Boourod  to  bo  paid  at  or  before  the  time  of  the  purchase,  and  cannot  be 
raised  by  matter  ex  post  facto  :  Botsford  v.  Burr,  2  John.  Ch.  405  ;  Steere 
V.  Stocro,  5  Id.  1  ;  Freeman  v.  Kelly,  1  Hofi'.  Ch.  DO;  Rogers  v.  Murray,  3 
Paige  ;{'.)(>;  Foster  v.  Trustees,  .'i  Ala.  302;  Mahorncr  v.  Harrison,  13 
Smedes  &  Marsh.  53  ;  (jiravcB  i'.  Dugan,  0  Dana  331 ;  Magee  v.  Magee,  1 
Penn.  St.  405 ;  Pago  v.  Page,  8.N.  H.  187  ;  Brooks  v.  Fowle,  14  Id.  248  ; 
Conner  v.  Lewis,  16  Maine  208  ;  Pinnock  r.  Clough,  10  Verm.  500  ;  Haines 
f.  O'Conner,  10  Watts  313;  Gomez  v.  Tradesman's  Bank,  4  Sandf.  S.  C. 
100;  Buck  »).  Swazey,  35  Maine  41;  Lynch  v.  Cox,  23  Penn.  St.  205; 
Olive  V.  Dougherty,  3  Green  (Iowa)  371  ;  It-win  v.  Ivors,  7  Indiana  308  ; 
Whiting  V.  Gould,  2  Wis.  552;  Barnard  v.  Jewett,  97  Mass.  87;  Nixon's 
Appeal,  03  Ponn.  St.  279. '  Land  purchased  with  borrowed  money  does 
not  raiso  an  im])lied  trust  in  favor  of  the  creditor:  Gibson  v.  Foote,  40  Miss. 
788.  The  fund  may,  however,  have  been  supplied  by  the  nominal  purchaser 
himself  on  credit :  Pago  v.  Page,  8  N.  II.  187;  Kunnells  v.  Jackson,  1 
How.  (Miss.)  358 ;  Rogan  v.  Walker,  I  Wis.  527;  Brooks  v.  Ellis,  3  Iowa 
527  ;  but  in  such  case  the  evidence  must  be  very  clear  ;  Kendall  v.  Mann, 
II  Allen  15. 

Tlio  facts  from  which  a  resulting  trust  is  to  be  established,  may  be 
jiroved  by  parol,  the  case  being  excepted  from  the  Statute  of  Frauds,  though 
at  the  same  time  the  evidence  must  bo  clear  and  positive :  Botsford  v. 
Burr,  2  John.  Ch.  405  ;  Steere  v.  Steere,  5  Id.  1  ;  Peebles  v.  Reading,  8 
S.  it  R.  4S4 ;  Klliott  v.  Armstrong,  2  Blaokf.  194 ;  Blair  v.  Bass,  4  Id. 
589  ;  Pugh  r.  Bell,  1  J.  J.  Marsh.  403 ;  Depeyster  v.  Gould,  2  Green  Ch. 
474;  Page  r.  Pago,  8  N.  II.  187  ;  Slocum  r.  Marshall,  2  Wash.  C.  C.  397  ; 
Knos  V.  Hunter,  4  Oilman  211  ;  Carey  v.  Callan,  0  B.  Monr.  44,  and  many 
other  eases.  In  England,  it  is  very  doubtful  whether  such  evidence  would 
bo  admitted  against  the  answer  of  the  defendant,  but  it  is  held  in  the 
United  States,  generally,  that  it  is  so ;  though  it  must  be  extremely  clear, 
and  is  to  bo  rooeivod  with  the  greatest  caution  :  Boyd  v.  McLean,  1  John. 
Ch.  582 ;  Botsford  v.  Burr,  2  Id.  405  ;  Buck  v.  Pike,  2  Fairf.  24 ;  Baker  v. 
Vining,  30  Maine  121 ;  Pago  «.  Pago,  8  N.  H.  187  ;  Snelling  r.  Utterback, 
1  Bibb  009  ;  Lotoher  v.  Lotoher,  4  J.  J.  Marsh.  590 ;  Elliott  t\  Armstrong, 
.2  Blaokf.  198  ;  Blair  r.  Bass,  4  Id.  640  ;  Larkinsr.  Rhodes,  5  Porter  196  ; 
Ensley  v.  Balontiuo,  4  Humph.  233 ;  Faringer  r.  Ramsay,  2  Md.  365 ; 
Fausler  v.  Jones,  7  Ind.  277  ;  AVhiting  v.  Gould,  2  Wis.  552;  Osborne  t\ 


ORDINARY    AND    CHARITABLE    TRUSTS.  115 

out  mention  of  the  actual  purchaser,  or  in  the  joint  names 
of  a  stranger  and  the  purchaser  himself;    whether  the 

Endicott,  6  Cal.  149;  Collins  ».  Smith,  18  111.  160;  Hill  on  Trustees  96, 
note  2.  Parol  evidence  is  also  admissible,  though  it  may  contradict  the 
recital  in  the  deed,  that  the  consideration  was  paid  by  the  nominal  pur- 
chaser, at  least  during  his  lifetime  :  Hill  on  Trustees  95,  note  ;  Livermore 
V.  Aldrich,  5  Cush.  435,  and  ca«e8  there  cited ;  see  also.  Wolf  r.  Corby, 
30  Md.  356  ;  Colton  v.  Wood,  25  Iowa  43  ;  Groesbeck  v.  Seeley,  13  Mich. 
329  ;  Hogan  v.  Jaques,  4  Green  (N.  J.)  123  ;  and  according  to  decisions  in 
the  United  States,  the  question  being  unsettled  in  England,  after  his  death 
also,  though  of  course,  in  such  case,  the  proof  should  be  of  the  strongest 
character,  as  the  protection  of  an  answer  is  absent :  Unitarian  Society  v. 
Woodbury,  14  Maine  281 ;  Neill  v.  Keese,  5  Texas  23 ;  Harder  v.  Harder, 
2  Sandf.  Ch.  17  ;  McCammon  v.  Petit,  3  Sneed  242.  See  Ilarrisburg  Bank  • 
V,  Tyler,  3  W.  &  S.  373.  For  the  purpose  of  establishing  the  fact  of 
payment  by  the  cestui  que  trustt,  the  declarations  or  admissions  of  the 
nominal  purchaser  to  that  effect  are  always  competent :  Malin  v.  Malin,  I 
Wend.  02G;  Pierce  v.  McKeehan,  3  Penn.  St.  136;  Harder  v.  Harder,  2 
Sandf.  Ch.  17  ;  Lloyd  v.  Carter,  17  Penn.  St.  216  ;  Peabody  v.  Tarbell,  2 
Cush.  232 ;  Pinney  v.  Fellows,  15  Verm.  525 ;  Barron  v.  Barron,  24  Id. 
375  ;  but  parol  declarations  that  he  had  purchased  or  was  about  to  pur- 
chase for  another,  without  proof  of  some  previous  agreement,  or  advance 
of  money,  are  obviously  inadmissible,  as  they  would  go  to  establish  not  a 
resulting,  but  an  express  trust,  in  the  teeth  of  the  Statute  of  Frauds  :  Sidle 
V.  Walters,  5  Watts  389 ;  Haines  v.  O'Connor,  10  Id.  313 ;  Blyholder  v. 
Gilson,  18  Penn.  St.  134 ;  Smith  r.  Smith,  27  Id.  180. 

A  promise  to  buy  land  at  sherifTs  sale  is  within  the  Statute  of  Frauds : 
Smith  t\  Smith,  27  Penn.  St.  180 ;  Kellum  v.  Smith,  33  Id.  158 ;  Gilberts. 
Carter,  10  Ind,  10.  But  it  must  be  remembered  that  where  a  person  at 
sheriff's  sale  makes  declaration  that  he  is  buying  on  behalf  of  the  defendant, 
and  thereby  prevents  other  persons  from  bidding,  he  will  be  held  a  trustee 
for  the  defendant :  Brown  v.  Dysinger,  1  Rawle  448 ;  Bethell  v.  Sharp,  25 
111.  173 ;  Ryan  ».  Dox,  34  N.  Y.  307  ;  for  an  element  of  fraud  exists  in 
this  last  class  of  cases  which  does  not  obtain  in  the  former. 

As  a  resulting  trust  may  be  created,  so  may  it  be  rebutted,  by  parol  evi- 
dence, either  by  way  of  direct  contradiction  of  the  alleged  facts,  or  in  proof 
of  a  different  intention  of  the  parties  at  the  time,  as  that  the  nominal  pur-' 
chaser  was  designed  to  be  the  real  beneficiary :  Botsford  v.  Burr,  2  John. 
Ch.  405;  Page  f.  Pag«,  «  N-  H.  189;  Baker  r.  Vining,  30  Maine  126; 
Elliott  V.  Armstrong,  2  Blackf.  199;  McGuire  v.  McGowen,  4  Dessaus.  487; 
Sewell  V.  Baxter,  2  Md.  Ch.  448.  Or  that  the  party  advancing  the  pur- 
chase-money, by  the  original  agreement  expressly  stipulated  for  himself  a 


116  ADAMS's    DOCTRINE     OF    EQUITY. 

estate  be  originally  conveyed  to  one  purchaser  out  of 
ps^q^-i  many,  or  *become  ultimately  vested  in  one  as  the 
survivor,  under  an  assurance  which  has  created  a 
legal  joint  tenancy ;  or  whether  in  the  case  of  several 
nominal  purchasers,  an  immediate  joint  estate  be  given  to 
all,  or  the  grant  be  to  take  successively  one  after  another. 
Whatever  be  the  peculiar  form  in  which  the  assurance  is 


benefit  from  the  transaction,  inconsistent  with  the  creation  of  a  trust :  Dow 
w.  Jewell,  1  Foster  470.  And  so  in  general,  where  a  different  trust  has 
been  declared  at  the  time  in  writing:  Leggett  v.  Dubois,  5  Paige  114; 
Anstice  v.  Brown,  6  Id.  448  ;  Clark  v.  Burnham,  2  Story  1 ;  Mercer  v. 
■  Stark,  1  S.  &  M.  Ch.  479. 

Resulting  trusts  of  this  nature  arise  from  the  want  of  any  consideration 
between  the  nominal  purchaser  and  the  person  who  supplies  the  purchase- 
money.  Where,  therefore,  the  parties  are  not  strangers,  but  stand  in  that 
relation  of  blood,  which  supplies  by  itself,  in  equity,  a  good  consideration 
for  a  conveyance,  as  in  the  case  of  a  purchase  by  a  parent  in  the  name  of 
a  child,  prima  facie  no  trust  results,  but  the  transaction  is  treated  as  an 
advancement :  Page  v.  Page,  8  N.  H.  187  ;  Jackson  v.  Matsdorf,  11  John. 
91  ;  Partridge  v.  Havens,  10  Paige  618  ;  Knouff  v.  Thompson,  16  Penn. 
St.  357  ;  Dennison  v.  Goehring,  7  Id.  182,  n. ;  Taylor  v.  James,  4  Dessaus. 
6  ;  Tremper  v.  Borton,  18  Ohio  418  ;  Stanley  v.  Brennen,  6  Black.  194  ; 
Dudley  v.  Bosworth,  10  Humph.  12 ;  Tebbetts  v.  Tilden,  11  Foster  273 : 
Rankin  v.  Harper,  23  Missouri  679.  But  this  is  a  mere  circumstance 
creating  an  adverse  presumption,  to  rebut  which,  again,  parol  evidence  is 
admissible:  Jackson  v.  Matsdorf,  11  John.  91:  Dudley  i'.  Bosworth,  10 
Humph.  12;  Taylors.  Taylor,  4  Gilm.  303;  Tremper  «.  Barton,  18  Ohio 
418.  And  under  all  circumstances,  where  the  conveyance  is  in  fraud  of 
creditors,  a  sufficient  interest  remains  in  the  parent,  to  subject  it  in  equity 
to  the  claim  of  his  creditors  :  Kimmel  v.  McRight,  2  Penn.  St.  38  ;  Guthrie 
V.  Gardner,  19  Wend.  414;  Jencks  v.  Alexander,  11  Paige  619;  Croft  v. 
Arthur,  3  Dessaus.  223  ;  Rucker  v.  Abell,  8  B.  Monr.  566 ;  Dunnien  v.  Coy, 
24  Missouri  167  ;  Garfield  v.  Hatmaker,  15  N.  Y.  476. 

It  only  remains  to  state  that  in  some  of  the  United  States  resulting  trusts 
have  been  abolished,  or  exist  only  in  certain  cases  and  under  certain  re- 
strictions, specified  and  imposed  by  the  statutes.  Such  is  the  case  in  New 
York,  Minnesota,  Wisconsin  and  other  states.  In  regard  to  trusts  of  this 
description  in  the  first  mentioned  state,  see  Lounsbury  v.  Purdy,  18  N.  Y. 
515 ;  Swinburn  v.  Swinburn,  28  Id.  568 ;  Siemon  v.  Schurck,  29  Id. 
598 ;  and  Buffalo,  &c.,  Railroad  Co.  v.  Lampson,  47  Barb.  533. 


ORDINARY    AND    CHARITABLE    TRUSTS.  117 

made,  it  does  not  affect  the  presumption  that  an  estate  or 
share  of  an  estate,  vested  in  a  man  who  did  not  pay  its 
price,  was  not  intended  by  w^ay  of  beneficial  ownership ; 
and  therefore,  in  all  those  cases  alike,  if  there  be  no  evi- 
dence of  an  opposite  intention,  the  trust  of  such  legal 
estate  will  result  to  the  parties  who  have  advanced  the 
purchase-money,  in  proportion  to  the  amount  of  their 
respective  advances.  And  as  trusts  of  this  kind  are  ex- 
pressly exempted  from  the  Statute  of  Frauds,  it  is  com- 
petent for  the  real  purchaser  to  prove  his  payment  of  the 
purchase-money  by  parol  evidence,  even  though  it  be 
otherwise  expressed  in  the  deed. 

The  doctrine,  however,  is  merely  one  of  presumptive 
evidence.  It  is  not  a  rule  of  law  that  a  trust  must  be 
intended  on  such  a  purchase,  but  it  is  a  reasonable  pre- 
sumption, as  a  matter  of  evidence,  in  the  absence  of  proof 
to  the  contrary.  It  is  therefore  open  to  the  nominal  pur- 
chaser to  rebut  that  presumption  by  direct  or  circumstan- 
tial evidence  to  the  contrary.  He  may,  for  instance,  show 
that  it  was  intended  to  give  him  the  beneficial  interest, 
either  altogether  or  in  part;  that  the  purchase-money  was 
advanced  by  way  of  loan  to  himself,  and  that  the  party 
advancing  it  intended  to  become  his  creditor,  and  not  the 
equitable  owner  of  the  estate;  or  that  the  purchase-money, 
on  a  conveyance  in  joint  tenancy,  was  advanced  by  the 
several  purchasers  in  equal  shares,  so  that  there  is  no 
improbability  of  an  estate  in  joint  tenancy  having  been 
really  contemplated,  with  equal  chance  of  survivorship  to 
all.  In  this  manner  a  counter  presumption  inay  be  raised 
in  opposition  to  the  original  one ;  and  this  again  in  its 
turn  may  be  met  by  other  evidence  of  an  opposite  in- 
tention. Lastly,  the  evidence  which  is  thus  brought 
forward  on  either  side  may  be  derived  either  from  con- 


118  ADAMS's    DOCTRINE     OF     EQUITY. 

r;i:oc-]  temporaneous  declarations^  *or  other  direct  proof 
of  intention,  or  from  the  circumstances  under 
which  the  transaction  took  place,  or  from  the  subsequent 
mode  of  treating  the  estate,  and  the  length  of  time  during 
which  a  particular  mode  of  dealing  with  it  has  been  adopted 
on  all  sides.  («*) 

The  most  important  class  of  cases  in  which,  as  an  ordi- 
nary rule,  this  counter  presumption  arises,  are  those  where 
a  purchase  has  been  made  in  the  name  of  a  child,  or  of 
one  towards  whom  the  party  paying  the  money  has  placed 
himself  in  loco  'parentis.  The  general  principle  on  w^iich 
this  counter  presumption  proceeds  is  that,  inasmuch  as  it 
is  a  father's  duty  to  provide  for  his  child,  it  is  not  impro- 
bable that  he  may  make  the  provision  by  giving  the  child 
an  estate,  or  by  purchasing  one  for  him  in  his  name.  And, 
therefore,  if  he  does  make  a  purchase  in  the  child's  name, 
i\iQ  primd  facie  probability  is  that  he  intended  it  as  a  pro- 
vision or  advancement.  The  doctrine  on  this  point  will 
be  hereafter  separately  considered  under  the  head  of 
Meritorious  Consideration. 

In  accordance  with  the  same  principle  it  is  held,  that  if 
land  is  acquired  as  the  substratum  of  a  partnership,  or  is 
brought  into  and  used  by  the  partnership  for  partnership 
purposes,  there  will  be  a  trust  by  operation  of  law  for  the 
partnership,  as  tenants  in  common,  although  a  trust  may 
not  have  been  declared  in  writing,  and  the  ownership  may 
not  be  apparently  in  all  the  members  of  the  firm,  or  if  in 
all,  may  apparently  be  in  them,  not  as  partners  but  as 
joint  tenants,  (^) 

(t)  3  Sug.  V.  &  P.  275 ;  Lloyd  v.  Spillett,  3  Atk.  150;  Dyer  v.  Dyer,  2 
Cox  92;  Rider  v.  Kidder,  10  Ves.  360;  Aveling  v.  Knipe,  19  Id.  441; 
Wray  v.  Steele,  2  Ves.  &  B.  388 ;  Vickers  v.  Cowell,  1  Bea.  529. 

[k)  Dale  v.  Hamilton,' 5  Hare  369,  382;  2  Ph.  266. 

^  But  not  from  subsequent  declarations  :  Sidle  v.  Walters,  5  Watts  389  ; 
Hill  on  Trustees  94,  note ;  Bennett  v.  Fulmer,  49  Penn.  St.  155. 


ORDINARY    AND    CHARITABLE    TRUSTS.  119 

Another  class  of  cases,  in  which  the  circumstances  give 
rise  to  the  presumption  of  a  resulting  trust,  is  where  a 
man,  whose  duty  it  was  to  create  a  trust,  has  done  an 
ambiguous  act,  and  the  Court  construes  such  act  as  having 
been  done  in  accordance  with  that  duty. 

*If  therefore  a  man  is  a  trustee  of  certain  funds  rnco/^-i 
for  investment  in  land,  or  has  bound  himself  by 
covenant  to  lay  out  money  in  land,  and  he  purchases  an 
estate  at  a  corresponding  price,  it  will  be  presumed,  inde- 
pendently of  positive  evidence,  that  his  object  in  the 
investment  was  to  effectuate  the  trust ;  and  a  trust  may 
be  implied  accordingly.  But  it  will  be  observed  that  this 
is  not  as  a  hostile  or  compulsory  decree,  but  on  the  sup- 
position that  such  a  result  was  really  contemplated ;  and 
therefore  if  the  contrary  be  proved,  as  by  showing  that 
the  purchase  was  made  under  a  mistaken  opinion  of  the 
trust,  the  presumption  cannot  be  raised.  It  is  otherwise 
if  the  covenant  be  to  settle  such  land  as  the  covenantor 
may  have  on  a  specified  day,  or  to  purchase  a  specific 
estate,  which  he  afterwards  acquires ;  for  in  these  cases 
the  trust  attaches  by  virtue  of  the  covenant,  independently 
of  any  intention  in  the  party  bound.  (^)^ 

{I)  Tooke  V.  Hastings,  2  Vera.  97 ;  Deacon  v.  Smith,  3  Atk.  323 ;  Perry 
p.  Phelips,  4  Ves.  108  ;  Wellesley  v.  Wellesley,  10  Sim.  256;  4  M.  &  C.  561. 

'  Besides  that  described  in  the  text,  there  is  another  class  of  trusts 
"created  by  operation  or  implication  of  law,"  which  are  usually  denomi- 
nated constructive  trusts,  and  are  of  much  importance  and  frequency.  This 
class  comprehends  those  cases  where  the  holder  of  the  legal  estate  in 
property  cannot  also  enjoy  the  beneficial  interest  therein  without  violating 
some  established  principle  of  equity.  The  chief  instance  of  this  occurs 
when  the  property  has  been  acquired  by  fraud,  actual  or  constructive.  As 
the  leading  doctrines  on  this  subject  will  be  found  discussed  in  other  parts 
of  this  volume,  particularly  under  the  head  of  Rescission  and  Cancellation 
(post.  174,  foil.),  it  is  sufiBcient  to  state  here  that  where  a  party,  actively  or 
passively  guilty  of  fraud,  has  thereby  obtained  the  legal  title,  he  is  txeated 


120  ADAMs's    DOCTRINE    OF    EQUITY. 

The  second  requisite  to  the  creation  of  a  trust  is  that 
the  ownership  be  accepted  on  the  proposed  terms.  The 
effect  however  of  non-acceptance  is  not  to  invalidate  the 
beneficial  gift,  but  merely  to  free  the  non-accepting  party 
from  the  liability  to  act.  It  is  a  settled  principle  in  equity 
that  a  trust  shall  not  fail  for  want  of  a  trustee ;  and, 
therefore,  whether  a  trustee  has  been  named,  who  after- 
wards refuses  the  trust ;  whether,  as  is  often  the  case  in 
wills,  no  trustee  be  named,  or  it  is  doubtful  who  is  the 

by  equity  in  general  as  a  mere  trustee  for  the  parties  injured,  and  subjected 
to  the  consequent  liabilities.  The  agency  of  constructive  trust  is  also  em- 
ployed, in  cases  where  no  fraud  has  been  committed  in  the  acquisition  of 
the  title,  for  the  vindication  or  enforcement  of  other  equitable  principles. 
Thus,  on  an  agreement  for  the  sale  of  land,  the  vendor  is,  before  actual 
conveyance,  treated  as  trustee  for  the  vendee.  And,  in  cases  of  part  per- 
formance of  parol  agreements  for  the  sale  of  land  by  payment  of  purchase- 
money,  the  vendee  acquires  an  equitable  interest  to  the  extent  of  the  pur- 
chase-money paid:  Rose  v.  Watson,  10  H.  L.  Ca.  672;  Barnes'  Appeal,  46 
Penn.  St.  350.  So  of  an  encumbrancer,  such  as  a  mortgagee  who  has  ob- 
tained a  conveyance  as  security  for  the  payment  of  money,  and  the  money 
has  been  repaid.  So,  one  to  whom  property  is  conveyed  by  a  trustee  with- 
out notice  of  the  trust,  but  on  no  valuable  consideration,  or  with  actual  or 
constructive  notice,  takes  it  subject  to  the  original  trusts.  Many  other 
similar  instances  might  be  put,  but  they  all  reduce  themselves  to  the 
general  principle  that,  wherever  a  man  cannot  hold  property  beneficially 
and  for  himself,  except  by  fraud  or  in  contravention  of  equity,  he  holds  it 
as  trustee  for  those  who,  in  contemplation  of  equity,  are  entitled  thereto. 

Constructive,  like  resulting,  trusts  are  excepted  out  of  the  Statute  of 
Frauds,  and  may  therefore  be  proved  by  parol.  The  rules  which  are  ap- 
plied to  them,  when  established,  are  in  general  the  same  with  those  which 
govern  direct  trusts,  but  they  are  not  in  every  respect  identical.  For  in- 
stance, it  is  a  fixed  principle  with  regard  to  the  latter  that  lapse  of  time, 
by  itself,  will  not  bar  their  enforcement,  but  in  respect  to  the  former  the 
question  of  laches  is  a  most  material  one,  both  with  reference  to  their 
establishment  and  to  the  consequent  relief  which  is  given.  Indeed,  in 
some  cases,  the  Statute  of  Limitations  is  directly  followed.  There  are  other 
distinctions,  also,  as  to  the  privileges  which  trustees  may  claim,  as  to  the 
fiduciary  relationship  of  the  parties,  as  to  costs,  and  other  matters  which 
cannot  be  dwelt  upon  here,  but  which  are  fully  considered  in  the  text- 
books on  the  subject. 


ORDINARY     AND     CHARITABLE     TRUSTS.  121 

proper  trustee ;  or  whether,  from  any  other  cause,  there 
be  a  failure  of  a  regularly  appointed  trustee ;  the  Court 
of  Chancery  will  see  to  the  execution  of  the  trust.^  it 
will  ascertain  in  whom  the  legal  ownership  is  vested,  and 
will  declare  him  a  trustee  for  the  purposes  of  the  gift,  or 
will  nominate,  if  required,  a  trustee  of  its  own,  to  whom 
the  estate  may  be  conveyed.  And  it  is  provided  by  a 
late  statute  that,  if  a  trustee  be  a  lunatic  or  infant,  or  if 
he  be  out  of  the  jurisdiction  of  the  Court,  or  if  it  be  un- 
certain (*where  there  were  several  trustees)  which  r*o7-j 
was  the  survivor,  or  uncertain  whether  the  trustee 
last  known  to  have  been  seised,  is  living  or  dead,  or,  if 
dead,  who  is  his  heir,  or  if  he  refuse  to  convey  when  re- 
quired, the  Lord  Chancellor,  in  the  case  of  lunacy,  and 
the  Court  of  Chancery,  in  the  other  cases,  may  substitute 
some  person  to  make  the  conveyance,  (w)^ 

(»0  11  Geo.  4,  and  1  Wm.  4,  c.  60. 

^  After  the  Court  of  Chancery  has  acquired  jurisdiction  by  bill  filed,  it 
will  not  suffer  any  appointment  or  substitution  of  trustees,  except  with  its 
sanction  and  control :  Hill  on  Trustees  190,  note.  Under  certain  circum- 
stances, as  where  the  fund  is  very  large,  the  Court  will  not  suffer  the 
property  to  remain  in  the  charge  of  one  trustee,  but  will  appoint  another : 
Grant  v.  Grant,  34  L.  J.  Ch.  641. 

*  Equity  never  suffers  a  trust  to  fiail  on  account  of  the  neglect  or  refusal 
of  the  trustee  to  act,  but  if  necessary  will  either  appoint  a  new  trustee,  or 
treat  the  holder  of  the  legal  title  as  such  :  Shepherd  v.  McEvers,  4  John. 
Ch.  136;  De  Barante  v.  Gott.  6  Barb.  S.  C.  492;  Crocheron  r.  Jacques,  3 
Edw.  Ch.  207  ;  King  v.  Donnelly,  5  Paige  46  ;  Cushney  v.  Henry,  4  Paige 
345;  McKennan  r.  Phillips,  6  Whart.  571  ;  Dawson  r.  Dawson,  Rice  Eq. 
243 ;  Lee  v.  Randolph,  2  Henn.  &  Munf.  12  ;  Mclntire  School  r.  Zan.  Canal 
&  M.  C,  9  Hamm.  203  ;  Griffith  v.  Griffith,  5  B.  Monr.  113  ;  Field  r.  Arrow- 
smith,  3  Humph.  442 ;  Peter  v.  Beverly,  10  Peters  534 ;  Furman  t.  Fisher, 
4  Cold.  (Tenn.)  626.  In  some  cases  the  appointment  is  made  by  a  formal 
suit,  in  others  by  a  petition  simply.  The  circumstances  which  justify  a 
resort  to  the  latter  method  are  of  course  the  subject  of  special  statutes  in 
England  and  the  various  United  States.  As  to  the  power  of  a  court  of 
chancery  to  appoint  new  trustees,  and  the  occasions  when  that  power  is  to 


122  ADAMS's     DOCTRINE     OF    EQUITY. 

If,  however,  there  is  not  merely  a  failure  of  the  specific 
trustee,  but  the  estate  derived  from  the  donor  is  at  an 
end,  and  there  is  an  owner  holding  by  a  paramount  or 
adverse  title,  the  trust  ceases  to  bind.  It  is  binding  on 
the  trustee  himself  if  he  accept  it,  and  on  any  person 
claiming  through  or  under  him,  except  a  purchaser  for 
value  without  notice  of  the  trust.      And  if  he  do  not 


be  exercised,  see  Hill  on  Trustees,  p.  190-194,  4th  Am.  ed.,  where  the 
American  and  Efiglish  statutes  are  referred  to.  See,  also,  Morgan  on 
Statutes  and  General  Orders,  pp.  58  to  123.  A  trustee  is  at  liberty  at  any 
time  before  acceptance  to  disclaim  or  refuse  the  trust :  Maccubin  v.  Crom- 
well, 7  Gill  &  John.  157 ;  Trask  v.  Donoghue,  1  Aik.  370.  It  is  always  to 
be  inferred,  however,  in  the  first  instance,  that  a  gift  by  deed  or  will  is 
accepted  by  the  donee :  Wilt  v.  Franklin,  1  Binn.  502 ;  Eyrick  v.  Hetrick, 
13  Penn.  St.  494;  Read  v.  Robinson,  6  W.  &  S.  331;  4  Kent  Comm. 
500 ;  and  after  the  lapse  of  a  great  length  of  time,  as  twenty-five  years, 
without  disclaimer,  the  trustee  having  notice,  acceptance  of  the  trust  may 
be  presumed :  Eyrick  v.  Hetrick,  13  Penn.  St.  493  ;  see  Penny  v.  Davis,  3 
B.  Monr.  314 ;  Re  Uniacke,  1  Jones  &  Lat.  1  .It  is  not  necessary,  in  order 
to  the  acceptance  of  the  trust,  where  created  by  deed,  that  there  should  be 
any  execution  thereof  by  the  trustee,  except  so  far  as  regards  his  legal  lia- 
bility upon  the  covenants  contained  therein :  Flint  v.  Clinton  Co.,  12  N. 
H.  432 ;  but  it  will  be  presumed  from  any  act  in  the  management  of  the 
trust  estate  ;  and  the  rule  is  the  same  as  to  trusts  created  by  Avill :  Flint 
V.  Clinton  Co.  ub  sup. ;  Chaplin  v.  Givens,  Rice  Eq.  133  ;  Latimer  v.  Han- 
son, 1  Bland  51 ;  Maccubbin  v.  Cromwell,  7  G.  &  J.  157.  Where  the  trus- 
tee is  also  executor,  probate  of  the  wiH  is  an  acceptance  as  to  personalty 
at  least:  Worth  v.  McAden,  1  Dev.  &  Batt.  Eq.  207.  Although  in  those 
states  where  security  is  required,  he  is  held  to  have  no  power  until  qualifi- 
cation: Monroe  V.  James,  4  Munf.  195  ;  Trask  v.  Donoghue,  1  Aik.  (Verm.) 
373.  Where  one  of  several  trustees  disclaims,  the  trust  estate  devolves  on 
the  remainder :  King  v.  Donnelly,  5  Paige  46  ;  Trask  v.  Donoghue,  1  Aik. 
370 ;  Putnam  Free  School  v.  Fisher,  30  Maine  523  ;  Jones  v.  Mafi'et,  5  S. 
&  R.  523 ;  Taylor  v.  Galloway,  I  Hamm.  232.  Where,  however,  there 
has  once  been  acceptance,  a  trustee  cannot  afterwards,  by  any  re- 
nunciation or  disclaimer,  rid  himself  of  the  duties  of  his  office,  except  by 
consent  of  all  parties,  or  by  the  intervention  of  a  court  of  chancery : 
Shepherd  v.  McEvers,  4  John.  Ch.  13G  ;  Cruger  v.  Halliday,  11  Paige  314  ; 
Latimer  v.  Hanson,  1  Bland  51  ;  Chaplin  v.  Givens,  1  Rice  Eq.  133;  Drane 
».  Gunter,  19  Alab.  731. 


ORDINARY    AND    CHARITABLE    TRUSTS.  123 

accept  it,  it  is  in  like  manner  binding  on  those  who  take 
in  his  stead  under  the  donor.  But  it  is  not  binding  on 
an  adverse  claimant  making  title  by  a  bond  fide  disseisin 
of  the  trustee  ;^  nor  was  it,  until  a  late  statute,  binding 
on  the  lord  entitled  by  forfeiture  or  escheat.  The  pri- 
vilege of  the  lord  by  escheat  is  now  excluded  by  statute ; 
and  the  Court  is  enabled  to  appoint  new  trustees,  and  to 
direct  a  conveyance  by  substitution  to  them,  when  a 
trustee  dies  without  an  heir,  in  like  manner  as  when  his 
heir  is  uncertain,  {n) 

The  acceptance  of  a  trustee  may  be  direct,  by  execu- 
tion of  the  trust  deed,  or  by  a  statement  that  he  accepts 
the  trust ;  or  it  may  be  implied  from  any  act  which  shows 
an  intention  on  his  part  to  deal  with  the  property,  and  to 
act  in  the  execution  of  the  duties  imposed,  (o)^  And  in 
like  manner  his  renunciation  may  be  evidenced  by  his 
conduct,  without  an  express  declaration  to  that  effect. 
But  the  more  prudent  course  is  to  execute  a  deed  of  dis- 
claimer, ip)  If,  instead  of  a  formal  disclaimer,  he  execute 
an  immediate  release  to  his  co-trustees  for  the  mere  pur- 
pose of  disclaiming,  *it  seems  doubtful  whether  r*qo-| 
such  a  release,  although  technically  a  dealing  with 

(n)  Gilbert  on  Uses,  by  Sag.  429 ;  Burgess  r.  Wheate,  1  Eden  177 ; 
[Sweeting  r.  Sweeting,  33  L.  J.  Ch.  311 ;]  Attorney -General  v.  Duke  of 
Leeds,  2  M  &  K.  343  ;  4  &  5  Wm.  4,  c.  23,  ss.  2  and  3.  [See  Hill  on  Trus- 
tees, 4  Am.  ed.  77,  and  notes.] 

(o)  Urich  V.  Walker,  3  M.  &  C.  702 ;  Kirwan  v.  Daniel,  5  Hare  493. 

{p)  Stacey  v.  Elph,  1  M.  &  K.  195.  [See  Judson  v.  Gibbons,  5  Wend. 
224  ;  Maccubbin  v.  Cromwell,  7  Gill  &  Johns.  165.] 

*  See  Stuyvesant  v.  Hale,  2  Barb.  Ch.  151 ;  Woods  r.  Farm  ere,  7  Watts 
382. 

*  As  a  general  rule  the  acceptance  of  the  trustee  must  be  of  the  entire 
trust,  and  he  cannot  limit  his  responsibility  to  a  particular  portion.  But 
there  may  be  exceptions  to  this  rule,  of  which  an  instance  will  be  found 
in  Malzy  r.  Edge,  2  Jurist  N.  S.  80. 


124  ADAMS's    DOCTRINE     OF    EQUITY. 

the  property,  would  be  treated  as  an  acceptance  of  the 
trust.  (§')  If  the  legal  ownership  has  become  vested  in 
him,  so  that  he  cannot  get  rid  of  it  by  mere  disclaimer, 
e.  g.,  on  a  descent  to  him  as  heir,  he  must  convey  to  a 
new  trustee  under,  the  sanction  of  the  Court,  but  is  not 
bound  to  do  any  further  act.^ 

A  trustee  after  acceptance  cannot  divest  himself  of  his 
trust  except  in  three  ways,  viz. :  1.  By  assent  of  all  his 
cestuis  que  trust;  2.  By  means  of  some  special  power  in 
the  instrument  creating  the  trust;  and  3.  By  an  appli- 
cation to  the  Court  of  Chancery.^ 

If  all  the  cestuis  que  trust  are  of  full  age  and  free  from 
disability,  there  is  no  difficulty  on  the  subject ;  for  their 
sanction  will  necessarily  secure  the  trustee.  But  if  there 
are  infants  ov  femes  coverte  interested,  or  if  there  is  a  trust 
for  children  not  in  esse,  or  if  for  any  other  reason  the  sanc- 
tion of  all  cannot  be  obtained,  then  the  mere  act  of  trans- 
fer would  be  a  breach  of  trust;  and  therefore  the  trustee 
cannot,  by  his  own  act,  relinquish  his  office,  but  would 
incur  an  additional  liability  for  any  misconduct  on  the 
part  of  his  transferree.     In  order  to   meet  this  inconve- 

[q]  Nicloson  v.  Wordsworth,  2  Swanst.  365 ;  Urch  v.  Walker,  3  M.  &  C. 

702. 

'  In  the  event  of  the  death  of  the  person  nominated  as  trustee,  before 
his  acceptance,  it  appears  doubtful  whether  the  rightof  disclaimer  will  fall 
to  the  ground,  or  will  pass  to  the  heir  or  personal  representative.  The 
point  arose  in  Goodson  v.  Ellison,  3  Russ.  583,  but  was  not  decided.  It 
would  seem  most  reasonable  to  hold  that  the  right  to  disclaim  would  pass 
to  the  heir  or  personal  representative  :  Hill  on  Trustees,  page  222.  See, 
however,  King  v.  Phillips,  16  Jur.  1080. 

^  Cruger  et  al.  v.  Halliday's  Adm'x,  11  Paige  314  ;  Jones  v.  Stockett,  2 
Bland  409  ;  Shepherd  v.  McEvers,  4  John.  Ch.  136. 

It  is  proper  in  this  connection  to  add,  that  courts  of  equity,  will  in  cases 
of  fraud,  negligence,  incapacity  to  act,  and  breach  of  trust,  remove  the 
trustee  :  Chambers  et  al.  v.  Mauldin  et  al.,  4  Ala.  477  ;  Thompon  v.  Thomp- 
son, 2  B.  Monr.  161.    See  Hill  on  Trustees,  4  Am.  ed.  298,  &c.,  and  notes. 


ORDINARY    AND    CHARITABLE    TRUSTS.  125 

nience,  it  is  usual  in  all  settlements,  the  trusts  of  which 
are  likely  to  last  for  any  length  of  time,  to  introduce  a 
clause,  authorizing  the  retirement  of  existing  trustees  and 
the  nomination  of  new  ones,  with  such  provisions  against 
misuse  of  the  authority  as  may  he  considered  expedient. 
If  no  such  authority  be  given,  or  if  the  trustee  is  unwill- 
ing to  exercise  it,  he  can  only  be  denuded  of  his  office  by 
a  decree  in  equity.  If  he  has  a  sufficient  ground  for 
retiring,  the  costs  of  a  suit  for  that  purpose  will  be  paid 
out  of  the  estate  ;  as,  for  instance,  if  he  becomes  involved 
in  complicated  questions,  which  could  not  have  been  anti- 
cipated when  he  undertook  the  trusts ;  but  he  cannot 
burden  the  estate  with  costs  occasioned  by  a  capricious 
abandonment  *of  his  charge. (r)^  After  a  bill  has  r*Dq-| 
been  filed  for  the  appointment  of  new  trustees,  it  is 
improper,  though  not  absolutely  incompetent,  for  the  origi- 
nal trustees,  to  make  an  appointment  without  authority 
from  the  Court,  notwithstanding  there  may  be  a  power  of 
appointment  in  the  deed  of  trust ;  nor  will  the  existence 
of  such  a  power  induce  the  Court  to  appoint  new  trustees 
on  the  nomination  of  the  old  ones,  Avithout  inquiry  as  to 
the  fitness  of  the  parties  nominated,  (s)  In  some  decrees 
appointing  new  trustees,  a  power  for  such  new  trustees  to 
supply  future  vacancies  without  a  fresh  application  to  the 
Court  has  been  inserted,  but  the  admissibility  of  such  a 
power,  except  under  special  circumstances,  appears  to  be 
doubtful.  (0' 

(r)  Coventry  i-.  Coventry,  1  Keen  758 ;  Greenwood  v.  Wakeford,  1  Bea. 
576. 

(s)  Attorney-General  v.  Clack,  1  Bea.  467 ;  Cafe  v.  Bent,  3  Hare  245 ; 

V.  Roberts,  1  J.  &  W.  251. 

{t)  White  V.  White,  5  Bea.  221  ;  Bowles  v.  Weeks,  14  Sim.  591. 

^  Matter  of  Jones,  4  Sandf.  Ch.  615  ;  Cruger  v.  Ilalliday,  11  Paige  314; 
Courtney  v.  Courtney,  3  Jones  &  Lat.  529. 
*  It  is  now  established  that  such  power  cannot  be  exercised  by  the 


126  ADAMS's     DOCTRINE     OF     EQUITY. 

Where  a  conveyance  by  substitution  under  the  statute 
is  requisite,  an  appointment  of  new  trustees  may  be  made 
summarily  on  petition  without  bill.  But  this  authority 
is  confined  to  cases  of  substituted  com^eyance,  and  does 
not  apply  generally  to  the  appointment  of  new  trus- 
tees, (m) 

A  trustee  of  stock  or  money  is  now  enabled  to  get  rid 
of  his  trust  by  payment  or  transfer  to  the  Accountant- 
General,  without  the  necessity  of  filing  a  bill.  For  this 
purpose,  it  is  enacted  that  all  trustees,  executors,  admin- 
istrators or  other  persons,  holding  moneys,  stock,  or  gov- 
ernment or  parliamentary  securities,  belonging  to  any  trust, 
or  the  major  part,  may  pay,  transfer,  or  deposit  them  into 
or  in  the  name  of  the  Accountant-General,  on  filing  an 
affidavit  shortly  describing  the  instrument  creating  the 
trust ;  and  that  the  application  of  the  fund  shall  be  after- 
wards regulated  by  the  Court  on  petition,  (e;) 

So  soon  as  the  creation  and  acceptance  of  a  trust  are 
perfected,  the  property  which  it  affects  is  subjected,  as  we 
*have  seen,  to  a  double  ownership ;  an  equitable 
L  -I  ownership  in  the  cestui  que  trust,  and  a  legal  own- 
ership in  the  trustee. 

The  equitable  ownership  or  interest  of  the  cestui  que 
trust  is  in  strictness  a  mere  chose  in  action,  or  right  to  sue 
a  suhpoena  against  the  trustee.  But  it  is  considered  in 
equity  the  estate  itself;  and  is  generally  regulated  by 
principles  corresponding  with  those  which  apply  to  an 
estate  at  law.  The  terms  in  which  it  is  declared  are  in- 
terpreted by  the  same  rules ;  it  is  subject  to  the  same 

{u)  1  Wm.  4,  c.  60. 
[v]  10  &  11  Vict.  c.  96. 

court :  Holdin  v.  Durbin,  11  Beav.  574 ;  Oglander  v.  Oglandcr,  2  De  G.  & 
Sm.  381. 


ORDINARY     AND     CHARITABLE    TRUSTS.  127 

restraints  of  policy,  and  is  governed  by  the  same  laws  of 
devolution  and  transfer.  The  analogy,  however,  is  not 
free  from  exception  ;  and  the  character  of  the  exceptions 
which  exist,  together  with  the  general  operation  of  the 
rule,  will  now  form  the  subject  of  consideration. 

I.  The  terms  in  which  a  trust  is  declared  are  interpreted 
by  the  ordinary  rules  of  law.^ 

It  was  at  one  time  suggested,  th&t  the  language  of  a 
trust  might  be  construed  with  greater- license  than  that  of 
a  gift  at  law.  But  this  notion  is  now  at  an  end.  And  it 
is  clear  that  the  declaration  of  an  executed  trust,  i.  e.,  a 
trust  of  which  the  scheme  has  in  the  outset  been  com- 
pletely declared,  will  bear  exactly  the  same  construction 
as  if  it  had  been  a  conveyance  of  the  legal  estate.  If  the 
scheme  has  been  imperfectly  declared  in  the  outset,  and 
the  creator  of  the  trust  has  merely  denoted  his  ultimate 
object,  imposing  on  the  trustee  or  on  the  Court  the  duty 
of  effectuating  it  in  the  most  convenient  way,  the  trust  is 
called  executory,  and  is  construed  by  a  less  stringent  rule.^ 

The  reason  of  this  apparent  exception  is  obvious,  for 

'  Equity  subjects  trusts  to  the  same  construction  that  a  court  of  law  does 
legal  estates ;  and  a  donee  must  have  capacity  to  take  whether  it  is  at- 
tempted to  convey  title  directly  to  the  party  himself,  or  to  another  in 
trust  for  him :  Trott«r  v-  Blocker,  6  Porter  269 ;  see  Cudworth  c.  Hall's 
Adm'r,  3  Dessaus.  256. 

*  The  distinctions  between  executory  and  executed  trusts,  especially 
with  regard  to  the  application  of  the  rule  in  Shelley's  Case,  are  generally 
recognised  in  the  United  States :  Croxall  v.  Shererd,  5  Wall.  S.  C.  281  ; 
Dennison  v.  Goehring,  7  Penn.  St.  177  ;  Wood  v.  Burnham,  6  Paige  518  ; 
Tallman  p.  Wood,  26  Wend.  19 ;  Home  v.  Lyeth,  4  Harr.  &  J.  434 ;  Gar- 
ner V.  Garner,  1  Desaus.  444 ;  Porter  v.  Doby,  2  Rich  Eq.  49 ;  Edmonson 
V.  Dyson,  2  Kelly  307  ;  Lessee  of  Findlay  ».  Riddle,  3  Binn.  152  ;  Neves  r. 
Scott,  9  How.  U.  S.  211 ;  Berry  v.  Williamson,  11  B.  Monr.  251 ;  Imlay  v. 
Huntington,  20  Conn.  162  ;  Saunders  v.  Edwards,  2  Jones  Eq.  134  ;  Wag- 
staffe  r.  Lowere,  23  Barb.  215  ;  Note  to  Lord  Glenorchy  r.  Bosville,  1  Lead. 
Cas.  Eq.  1. 


128  ADAMS's     DOCTRINE     OF     EQUITY. 

the  very  existence  of  a  requirement  to  devise  means  for 
eiFectuating  the  trust,  proves  that  the  language  already 
used  is  not  meant  as  a  conclusive  declaration  of  its  terms. 
And  such  language  is  accordingly  treated  by  the  Court 
as  indicating  the  mere  heads  of  an  arrangement,  the  de- 
tails of  which  must  be  ascertained  from  general  usage. 

If,  for  example,  an  executed  trust  be  declared  in  favor 
*of  one  for  life,  with  remainder  to  his  issue,  sub- 
L  -I  ject  to  a  proviso  that  he  shall  not  bar  the  entail, 
the  first  taker  will  be  tenant  in  tail,  under  the  rule  in 
Shelley's  Case,  and  the  proviso  will  be  void  as  inconsis- 
tent with  his  estate.  But  if  the  trust  were  executory,  a 
similar  direction  would  be  held  to  signify  that  the  estate 
should  go  as  nearly  as  possible  in  the  line  of  an  entail, 
without  giving  the  first  taker  a  power  to  alienate,  and 
would  be  effectuated  by  directing  a  strict  settlement,  i.e., 
an  estate  to  himself  for  life,  with  a  limitation  to  trustees 
to  preserve  contingent  remainders,  with  remainder  to  his 
sons  successively  in  tail. 

In  the  case  of  executory  marriage  articles,  there  is  an 
indication  furnished  by  the  nature  of  the  instrument,  in- 
dependently of  any  expressed  intention  leading  to  this 
construction  of  the  trust;  for  it  is  assumed,  in  accord- 
ance with  ordinary  practice,  and  in  the  absence  of  reason 
to  conclude  the  contrary,  that  the  settlement  contemplated 
by  such  articles  is  one  which  will  not  only  provide  for  the 
husband  and  wife,  but  will  also  secure  a  provision  for  the 
children  of  the  marriage.  If,  therefore  the  articles,  strictly 
interpreted,  would  have  a  different  result,  they  will  be 
moulded  in  conformity  with  the  presumed  object.  In  the 
case  of  wills,  on  the  other  hand,  there  is  no  &uch  j^rimd facie 
indication  of  intent.  The  gifts  in  a  will  are  mere  bounty, 
and  are  themselves  the  only  guide  in  the  construction  of 


ORDINARY    AND    CHARITABLE    TRUSTS.  129 

their  terms.  If,  therefore,  technical  words  are  used,  and 
are  not  modified  or  explained  by  the  context,  it  seems 
that  the  trusts,  whether  executory  or  not,  must  be  con- 
strued in  accordance  with  the  technical  sense.  But  in  the 
case  of  an  executory  trust,  the  intention  so  to  modify 
them  may  be  collected  from  slighter  indications  than 
would  be  sufficient  in  that  of  an  executed  one ;  e.  g.,  in 
case  of  an  executory  trust  to  make  an  entail,  the  Court 
would  be  enabled  to  direct  a  strict  settlement  of  the  estate 
upon  the  intention  gathered,  and  from  an  express  limita- 
tion to  the  first  taker  for  life,  though  followed  by  a  re- 
mainder to  the  heirs  of  ^his  body  (especially  if  the  r*4^9-i 
gift  for  life  be  made  in  terms  unimpeachable  of 
waste)  ;  or  from  a  limitation  to  preserve  contingent  re- 
mainders ;  or  a  limitation  of  the  remainder  to  issue  in- 
stead of  heirs ;  although  clauses  of  this  kind  would  be 
ineffectual  to  vary  an  executed  trust,  if  its  terms  would 
in  themselves  create  an  entail.  (?<')^ 

In  cases  where  marriage  articles,  after  limiting  a  free- 
hold estate  in  strict  settlement,  have  directed  that  lease- 
holds shall  be  settled  on  analogous  trusts,  or  that  pictures 
or  other  personal  chattels  shall  be  settled  to  go  as  heir- 
looms with  the  estate,  a  question  has  arisen  as  to  the 
correct  frame  of  the  settlement.     The  effect  of  a  settle- 

(tc)  Austen  v.  Taylor,  1  Eden  361 ;  Blackburn  v.  Stables,  2  Yes.  &  B. 
367  :  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  559 ;  Rochford  v. 
Fitzmaurice,  1  Conn.  &  L.  158}  2  Jarm.  on  Wills  253-266;  Lewin  on 
Trustees  45-61. 

*  See  Garner  v.  Garner,  I  Dessaus.  444;  Berry  v.  Williamson,  11  B. 
Monroe  251 ;  Imlay  v.  Huntingdon,  20  Conn.  146  ;  Carrol  v.  Renich,  7 
Sm.  &  Marsh.  799  ;  Neves  v.  Scott,  9  How.  U.  S.  196:  and  see  a  discussion 
of  the  subject  in  Egerton  v.  Brownlow,  4  House  Lds.  Cas.  1 ;  see  also 
Gevers  v.  Wright's  Ex'rs,  3  Green  (N.  J.)  330;  Steinbergers  Trustees  v. 
Potter,  Id.  452. 
9 


130  ADAMS's    DOCTRINE    OF    EQUITY, 

ment  of  personal  chattels  on  limitations  identical  with 
those  of  the  freehold  estate,  would  he,  that  the  leaseholds 
or  other  personalty,  heing  incapable  of  entail,  would  vest 
absolutely  in  the  first  tenant  in  tail,  and  on  his  death 
would  go  to  his  executor.  This  inconvenience,  however, 
may  be  to  some  extent  obviated  during  the  period  within 
the  limits  of  perpetuity,  viz.,  a  life  in  being,  and  twenty- 
one  years  afterwards,  by  directing  that  on  the  death  of  a 
tenant  in  tail,  without  issue,  the  personalty  shall  go  by 
way  of  executory  gift  to  the  party  next  entitled  under 
the  settlement ;  and  it  seems  that  articles  directing  such 
a  settlement  are  to  be  construed  to  imply  such  an  execu- 
tory gift  on  death,  under  twenty-one  and  without  issue,  {xy 

2.  The  equitable  ownership  is  subjected  to  the  same 
restraints  of  policy  as  if  the  legal  estate  were  transferred. 

It  cannot,  for  example,  in  the  case  of  real  estate  be 
enjoyed  by  an  alien;  (t/Y  it  cannot  be  made  incapable  of 
alienation  by  the  owner,  or  be  denuded  of  any  other 
right  incidental  to  ownership ;  (^)  ^  nor  can  it  be  settled  in 

(x)  Duke  of  Newcastle  v.  Countess  of  Lincoln,  3  Ves.  387,  12  Ves.  218  ; 
Lord  Deerhurst  v.  Duke  of  St.  Albans,  5  Madd.  232.  [See  Rowland  v.  Mor- 
gan, 13  Jur.  23  ;  s.  c.  2  Phill.  764.] 

[y]  Du  Hourmelin  v.  Sheldon,  1  Bea.  79 ;  4  M.  &  C.  525. 

(z)  Brandon  v.  Robinson,  18  Ves.  429 ;  [Rochford  v.  Hackman,  9  Hare 
475.] 

^  A  very  full  discussion  of  the  authorities  on  the  subject  of  the  settle- 
ment of  personal  chattels  will  be  found  in  Scarsdale  v.  Curzon,  1  Johns.  & 
H.  40;  and  see  7  Jur.  N.  S.  pt.  2,  71. 

^  Atkins  V.  Kron,  5  Ired.  Eq.  207  ;  Hubbard  v.  Goodwin,  Leigh  492 ; 
Leggett  V.  Dubois,  5  Paige  114 ;  Taylor  v.  Benham,  5  How.  U.  S.  270 :  Ritt- 
son  V.  Story,  3  Sm.  &  Giff.  230;  though  see  Barrow  v.  Wadkin,  24  Beav. 
1,  when  it  was  held  that  the  crown  could  claim  the  benefit  of  a  purchase 
made  in  trust  for  an  alien.  But  it  is  difi"erent  as  to  the  proceeds  of  real 
estate,  directed  to  be  sold  by  will ;  an  alien  being  able  to  hold  personalty  : 
Craig  r.  Leslie,  3  Wheat.  563  ;  Comm.  v.  Martin,  5  Munf.  117. 

^  In  a  recent  case  in  the  Supreme  Court  of  the  United  States,  Nichols  v. 
Levy,  5  Wallace  441,  the  law  on  this  subject  was  thus  stated  by  Mr.  Jus- 


ORDINARY    AND    CHARITABLE    TRUSTS.  131 


*series  of  limitations   extending,  or  which  may    r^to-] 
dend,  beyond  the  limits  of  perpetuity,  viz.,  a  life 


a 

extend, 

or  lives  in  being,  and  twenty-one  years  afterwards ;  (a)  and 
in  the  particular  case  of  trusts  for  accumulation,  the  period 
of  duration  is  still  more  narrowly  limited;  and  it  is  enacted, 
that  no  such  accumulation  shall  be  allowed  for  a  longer 
term  than  the  life  of  the  grantor,  or  twenty-one  years  from 
the  death  of  the  grantor  or  testator,  or  the  minority  of 
some  person  living  or  in  ventre  sa  mere  at  his  death,  or 
during  the  minority  only  of  such  persons  as  would  for  the 
time  being,  if  of  full  age,  be  entitled  to  the  rents  and 
profits.  This  restriction,  however,  does  not  extend  to  any 
provision  for  payment  of  debts,  or  for  raising  portions  for 

(a)  1  Jarm.  on  Wills,  c.  ix,  s.  2. 

tice  Swayne.  "  It  is  a  settled  rule  of  law  that  the  beneficial  interest  of  the 
cestui  que  trust,  whatever  it  may  be,  is  liable  for  the  payment  of  his  debts. 
It  cannot  be  so  fenced  about  by  inhibitions  and  restrictions  as  to  secure  to 
it  the  inconsistent  characteristics  of  right  and  enjoyment  to  the  beneficiary, 
and  immunity  from  his  creditors.  A  condition  precedent  that  the  provision 
shall  not  vest  until  his  debts  are  paid,  and  a  condition  subsequent  that  it 
shall  be  divested  and  forfeited  by  his  insolvency  with  a  limitation  over  to 
another  person  are  valid,  and  the  law  will  give  them  full  effect.  Beyond 
this,  protection  from  the  claims  of  creditors  is  not  allowed  to  go."  In  this 
case  the  application  of  the  rule  was  prevented  by  reason  of  a  statute  in 
Tennessee,  by  the  law  of  which  state  the  trust  was  governed  :  see  also  Hal- 
lett  r.  Thompson,  5  Paige  583 ;  Dick  r.  Pitchford,  1  Dev.  &  Bat.  eq.  480. 
But  in  Pennsylvania  and  Kentucky,  such  proviso  is  held  good,  where  the 
cestui  que  trust  is  l-.imself  entirely  excluded,  by  the  terms  of  the  trust,  from 
any  control  over  the  property :  Vaux  v.  Parke,  7  W.  &  S.  19 ;  Pope  v  Elliott, 
8  B.  Monr.  56 ;  see  also,  Campbell  v.  Foster,  35  N.  Y.  361.  It  is  only  in 
cases  where  a  clear  surplus  will  exist  after  a  reasonable  sum  has  been  ap- 
propriated to  the  support  of  the  person  for  whose  benefit  a  trust  was 
created,  that  courts  of  equity  are  authorized  to  interfere  in  behalf  of  judg- 
ment creditors,  and  divert  a  portion  of  the  income  or  annuity  to  the  pay- 
ment of  the  debts  of  such  person  :  Genet  v.  Beckman,  45  Barb.  (N.  Y.) 
382.  Even  in  Pennsylvania,  however,  a  person  sui  juris  cannot  settle  pro- 
perty on  himself  for  life,  free  from  debts :  Mackason's  Appeal.  42  Penn. 
St.  330. 


132  ADAMS's    DOCTRINE    OF    EQUITY. 

children,  or  to  any  directions  touching  the  preservation  of 
woods  of  timber.  (^)^ 

The  rule,  however,  which  subjects  equitable  estates 
to  the  same  restraints  of  policy  as  if  they  were  legal, 
admits  of  two  singular  exceptions,  both  having  reference 
to  married  women;  the  one  in  what  are  called  the  sepa- 
rate use  and  pin-money  trusts,  enabling  a  married  woman 
to  hold  property  independent  of  her  husband,  and  allow- 
ing such  property  to  be  made  inalienable;  the  other  in 
what  is  called  the  wife's  equity  for  a  settlement,  restrain- 
ing the  husband's  right  over  her  equitable  chattels  real 
and  choses  in  action,  until  an  adequate  settlement  has 
been  made. 

The  eifect  of  the  separate  use  trust,  is  to  enable  a 
married  woman,  in  direct  contravention  of  the  principles 
of  law,  to  acquire  property  independently  of  her  husband; 
and  to  enter  into  contracts,  and  incur  liabilities  in  refer- 
ence to  such  property,  and  dispose  of  it  as  a  feme  sole, 
notwithstanding  her  coverture  and  disability  at  law,'-^ 
When  this  object  had  been  effected,  it  was  found  that  the 
influence  of  the  husband  in  inducing  his  wife  to  alienate, 
rendered  the  trust  in  practice  nugatory ;  and  to  obviate 
r*44.1  ^^^^  difficulty,  *and  secure  to  her  the  desired  pro- 
tection against  the  marital  rights,  another  principle 

(6)  Thelusson  v.  Woodford,  4  Ves.  227  ;  11  Ves.  112;  39  and  40  Geo.  3, 
c.  98 ;  1  Jarm.  on  Wills,  c.  ix,  s.  3. 

^  See  ante,  note  1  to  page  40 ;  and  see  the  subject  of  perpetuities,  dis- 
cussed in  Lorillard  v.  Coster,  5  Paige  Ch.  172 ;  Ilillyard  v.  Miller,  10 
Penn.  St.  335.  In  some  of  the  United  States  as  in  Pennsylvania,  and 
New  York,  there  are  legislative  provisions  against  accumulation.  See  Hill 
on  Trustees  394,  note. 

"^  Upon  the  trusts  for  separate  use  in  the  United  States,  see  2  Kent's 
Comm.  162 ;  notes  to  Hulme  v.  Tennant,  1  Lead.  Cases  in  Eq.  394 ;  Hill 
on  Trustees,  4th  Am.  ed.  625. 


ORDINARY    AND    CHARITABLE    TRUSTS.  133 

was  infringed,  by  deciding  that  the  gift  of  the  separate 
estate,  whether  for  life,  or  for  an  absolute  interest,  might 
be  fettered  and  qualified  by  prohibiting  anticipation  or 
alienation,  (c)  The  question  then  arose,  whether  the 
operation  of  such  a  clause  was  confined  to  an  existing 
coverture,  or  might  be  extended  to  take  effect  on  a  future 
marriage.  It  was  admitted,  that  during  discoverture  the 
clause  was  void,  and  that  the  ownership  was  absolute  up 
to  the  moment  of  marriage ;  and  it  might  therefore  have 
been  expected  that,  by  the  act  of  marriage,  the  usual 
interest  would  be  conferred  on  the  husband.  A  contrary 
decision,  however,  was  not  a  greater  violation  of  principle 
than  that  which  originally  gave  validity  to  the  trust.  The 
trust  is  founded  on  the  power  of  the  Court  of  equity  to 
model  and  qualify  an  interest  in  property  which  it  had 
itself  created,  without  regard  to  those  rules  by  which 
the  law  regulates  the  enjoyment  of  property  in  other 
cases.  And  in  accordance  with  this  view,  it  was  decided 
that,  although  the  prohibitory  clause  is  nugatory  whilst 
the  discoverture  lasts,  yet  if  the  property  be  not  disposed 
of  during  that  period,  the  prohibition  will  attach  imme- 
diately on  the  second  marriage.  (</)^     At  this  point,  ho w- 

(c)  Bagget  V.  Meux,  1  Coll.  138 ;  1  Ph.  627 ;  Rennie  v.  Ritchie,  12  CI.  * 
Fin.  204  ;  GaflFee's  Trust,  1  Macn.  &  Gord,  541. 

{d)  Tullet  V.  Armstrong,  1  Bea.  1  ;  4  M^  &  C.  377  ;  [Gaffee's  Trust,  I 
Macn.  &  Gord.  541 ;  Hawkes  v.  Hubback,  11  Eq.  L.  R.  5.] 

*  The  latter  English  doctrine,  as  stated  in  the  text,  has  been  followed  in 
the  United  States,  in  Beaufort  v.  Collier,  6  Humph.  487  ;  Shirley  v.  Shir- 
ley, 9  Paige  363  ;  Fellows  v.  Tann,  9  Alab.  1003  ;  Fears  v.  Brooks,  12  Geo. 
197;  Waters  v.  Tazewell,  9  Md.  291.  But  in  Hamersley  v.  Smith,  4 
Whart  126 ;  Kuhn  v.  Newman,  26  Penn.  St.  227 ;  Lindsay  r.  Harrison,  3 
Eng.  (Ark.)  311  (and  see  Dick  r.  Pitchford,  1  Der.  &,  Batt.  Eq.  480),  the 
separate  use  and  the  clause  against  anticipation  were  held  to  be  valid  only 
where  there  was  an  existing  coverture,  and  inefiFectual  as  regards  a  subse- 
quent one :  see  Dubs  v.  Dubs,  31  Penn.  St.  149.  And  a  similar  decision  was 
made  in  Miller  v.  Bingham,  1  Ired.  Eq.  423,  followed  in  Apple  v.  Allen, 


134  ADAMS's    DOCTRINE    OF    EQUITY. 

ever,  a  line  has  been  drawn ;  and  the  separate  use  trust 
is  so  far  bound  by  the  policy  of  the  law,  that  it  must 
contemplate  the  wife's  continuance  with  her  husband.  If 
it  be  framed  with  a  view  to  future  separation,  it  violates 
principle  beyond  the  authorized  limit,  and  is  for  that 
reason  invalid.  A  deed,  however,  which  contemplates 
an  immediate  separation,  and  makes  a  separate  provision 
for  the  wife,  with  a  view  to  that  object,  may  be  sustained 
and  enforced,  notwithstanding  that  its  primary  object — 
the  separation  itself — is  incapable  of  enforcement  by  either 
party.  But  such  a  provision  is  upheld  on  the  ground  of 
its  legal  validity,  and  not  on  the  footing  of  a  separate 
r*4.^~\  ^^*"st.  The  consistency  of  the  doctrine  *which 
thus  invalidates  the  primary  object  of  a  deed,  but 
gives  effect  to  a  collateral  one,  was  doubted  by  Lord 
Eldon,  but  he  felt  himself  bound  by  the  decisions  at  law. 
If  after  a  provision  has  been  made  for  an  immediate  sepa- 
ration, the  parties  come  together  again,  its  operation  is  at 
an  end  with  respect  to  any  future,  as  well  as  the  past, 
separation.  («)^ 

(e)  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  537;  Westmeath  v.  Salis- 

3  Jones  Eq.  120  ;  though  see  Bridges  v.  AVilkins,  Id.  342.  Upon  Hamers- 
ley  V.  Smith,  however  it  is  to  be  remarked,  that  it  was  based  upon  the 
English  decision  of  Massey  v.  Parker,  2  M.  &  K.  174,  which  has  since 
been  repeatedly  overruled  ;  and  that  in  so  far,  therefore,  its  authority 
has  been  weakened.  See  Wells  v.  McCall,  64  Penn.  St.  207.  And  it  is 
difficult,  moreover,  to  assent  to  the  reasoning  in  that  case,  without  denying 
the  validity  of  the  separate  use  altogether.  For  if  such  a  restraint  upon 
ownership  be  lawful  when  applied  to  a  state  of  coverture,  the  obvious 
contrivance  of  giving  an  unfettered  estate  to  the  woman  while  sole,  with 
express  limitations  over  to  a  trustee  for  the  separate  use,  &c.,  upon  the 
concurrence  of  the  next  and  succeeding  covertures,  would  obviate  any 
objection  which  could  be  urged.  If  this  be  so,  it  would  be  contrary  to 
every  principle  of  equity,  to  hold  that  the  mere  absence  or  imperfection 
of  the  proper  machinery,  where  the  intention  to  create  such  a  trust  was 
obvious,  woold  interfere  with  its  enforcement. 
*  A  contract  between  husband  and  wife  for  immediate  separation,  and 


ORDINARY    AND    CHARITABLE    TRUSTS.  135 

The  language  which  will  create  a  separate  trust,  as  well 
as  that  which  will  impose  a  fetter  on  anticipation,  has 
been  the  subject  of  nice  distinctions.  It  is  not  sufficient 
that  there  be  a  gift  for  the  wife's  benefit,  or  a  direction  to 
pay  the  money  into  her  own  hands,  for  there  is  nothing 
in  this  inconsistent  with  the  marital  right.     But  there 

bury,  5  Bligh  339  ;  [Cartwright  v.  Cartwright.  17  Jur.  584  ;]  Frampton  r. 
Franipton,  4  Bea.  287  ;  Jodrell  v.  Jodrell,  9  Id.  45  ;  [Webster  v.  Webster, 
22  L.  J.  Ch.  837.] 

for  a  separate  allowance  to  his  wife,  made  through  the  intervention  of  a 
trustee,  is  valid :  Carson  v.  Murray,  3  Paige  Ch.  483 ;  Champlin  v. 
Chaniplin,  1  Hoff.  Ch.  55;  Huttou  v.  Duey,  3  Penn.  St.  100;  Dillinger's 
Appeal,  35  Penn.  St.  357 ;  Simpson  v.  Simpson,  4  Dana  140 ;  Rogers  v. 
Rogers,  4  Paige  518 ;  Carter  v.  Carter,  14  Sm.  &  M.  59  ;  Barron  v.  Barron, 
24  Verm.  375 ;  McKennan  v.  Phillips,  6  Wharton  571  ;  Reed  v.  Beazley, 
1  Blackf.  97  ;  and  where  a  reservation  of  a  right  to  visit  each  other  in  case 
of  sickness,  was  made  in  the  deed,  but  never  acted  on,  this  reservation  was 
held  not  to  invalidate  the  agreement:  Carson  r.  Murray.  But  see  Rogers 
V.  Rogers,  4  Paige  Ch.  516  ;  Wallingsford  v.  Wallingsford,  6  Har.  &  J. 
485 ;  McKennan  v.  Phillips,  6  Wharton  571  ;  McCrocklin  v.  McCrocklin,  2 
B.  Monr.  370.  Although  generally  the  provisions  of  a  separate  deed  are 
annulled  by  reconciliation  and  re-cohabitation,  yet  the  husband  may  con- 
duct himself  subsequently  so  as  to  create  new  obligations  on  the  footing 
of  those  in  the  separate  deed.  As  where  in  a  deed  of  separation,  the  hus- 
band covenanted  to  pay  an  annuity  to  the  wife  for  her  life,  and  subse- 
quently, after  living  apart  for  a  while,  he  promised  her  that  if  she  would 
come  and  live  with  him  again,  the  annuity  should  be  continued,  it  was 
held  that  the  annuity  was  not  forfeited  by  re-cohabitation :  Webster  ». 
Webster,  22  L.  J.  Ch.  837 ;  27  Id.  115. 

In  England,  it  is  now  established,  that  specific  performance  of  articles 
of  agreement  to  a  separation,  so  far  as  they  regard  an  arrangement  of  pro- 
perty agreed  upon,  may  be  decreed :  Wilson  v.  Wilson,  1  H.  Lords  Cas. 
538 ;  see  s.  c.  5  H.  Lords  Cas.  40.  And  a  covenant  to  live  separate  will 
be  enforced  by  injunction:  Sanders  v.  Rodway,  16  Jur.  1005;  though 
where  the  agreement  contains  provisions  for  the  education  of  the  children, 
which  are  contrary  to  public  policy,  it  cannot  be  enforced  in  any  part : 
Vansittart  v.  Vansittart,  27  L.  J.  Ch.  295.  But  a  different  doctrine  from 
that  established  in  Wilson  t*.  Wilson,  is  still  held  in  the  United  States. 
See  cases  collected  in  Hill  on  Trustees,  4th  Am.  ed.  668 ;  Calkins  r.  Lang, 
22  Barb.  97. 


136  ADAMS's    DOCTRINE     OF    EQUITY. 

must  be  a  direction  that  it  shall  be  for  her  sole,  separate, 
or  independent  use,  or  in  other  equivalent  terms  showing 
a  manifest  intent  to  exclude  the  husband. (/)^  In  like 
manner,  in  order  to  create  a  fetter  on  anticipation,  there 
must  be  positive  Avords,  or  a  manifest  intention  to  restrain 
that  power  of  disposal,  which  \&  prima  facie  incidental  to 
ownership.  (^)^ 

(/)  Tyler  v.  Lake,  2  R.  &  M.  183 ;  Massey  v.  Parker,  2  M.  &  K.  174 ; 
Blacklow  V.  Laws,  2  Hare  49. 

[g]  Brown  v.  Bamford,  11  Sim.  127;  1  Ph.  620;  Medley  v.  Horton,  14 
Sim.  222 ;  Baggett  v.  Meux,  1  Coll.  138  ;  1  Ph.  627  ;  [Cooke  v.  Husbands, 
U  Md.  504;  Ross's  Trust,  1  Sim.  N.  S.  196.] 

^  It  is  difficult  to  lay  down  any  precise  rule  on  this  subject,  and  impos- 
sible to  reconcile  all  the  decisions.  There  must  be  an  intention  to  confer 
a  separate  interest  on  the  wife ;  and  this  intention  must  be  properly  mani- 
fested. The  intention  must  exist;  for  without  it,  words  which  would 
otherwise  dreate  a  separate  estate  will  not  have  that  effect.  Thus  in  Lewis 
V.  Mathews,  L.  R.  2  Eq.  177,  there  was  a  devise  of  real  and  personal  estate 
to  H.,  2k  feme  sole  who  afterwards  married,  "  her  heirs,  executors,  adminis- 
trators and  assigns,  for  her  and  their  own  sole  and  absolute  use  and  bene- 
fit," and  it  was  held  that  these  words  did  not  create  a  separate  estate  in 
H.,  because  they  were  applied  equally  to  her  heirs  and  executors,  as  to 
whom  no  such  intention  could  exist :  see  also  Rudisell  v.  Watson,  2  Dev. 
Eq,  430.  The  intention  must  be  properly  manifested  ;  and  this  may  be 
done  by  the  use  of  expressions  which  either  confer  upon  the  ^eme  a  domin- 
ion over  the  property  inconsistent  with  her  position  as  coverte,  or  which 
exclude  the  rights  of  the  husband.  Of  the  first  class  of  expressions  in- 
stances will  be  found  in  Jamison  v.  Brady,  6  S.  &  R.  466 :  Gardenhire  v. 
Hinds,  1  Head  402;  Ellis  v.  Woods,  9  Rich.  Eq.  19;  Ozley  v.  Ikelheimer, 
26  Alab.  332;  Nix  v.  Bradley,  6  Rich.  Eq.  48  ;  Bridges  v.  Wood,  4  Dana 
610  :  of  the  latter,  Woodrum  v.  Kirkpatrick,  2  Swan  218;  Martin  v.  Bell, 
9  Rich.  Eq.  42;  Young  v.  Young,  3  Jones  Eq.  216;  Ballard  v.  Taylor,  4 
Dessaus.  550  ;  Evans  v.  Knorr,  4  Rawle  66  ;  Perry  v.  Boileau,  10  S.  &  R. 
208,  are  examples. 

In  general  as  to  what  words  will  or  will  not  create  a  separate  use,  see 
the  American  note  to  Hulme  v.  Tenant,  1  Lead.  Cas.  Eq.  539,  and  Hill  on 
Trustees  654  to  650  (4th  Am.  ed.).  Particular  attention  may  perhaps  be 
called  to  Gilbert  v.  Lewis,  1  De  G.,  J.  &  Sm.  38,  and  Tarsay's  Trusts,  L. 
R.  1  Eq.  561.  The  intervention  of  a  trustee  is  not  necessary :  1  Lead. 
Cas.  Eq.  641. 

*  But  it  is  now  held  that  express  negative  words  are  not  necessary  to 


ORDINARY     AND    CHARITABLE    TRUSTS.  137 

In  the  absence  of  any  fetter  on  anticipation,  the  wife 
has  the  same  power  over  her  separate  property  as  if  she 
were  unmarried.  Her  disability  to  bind  herself  or  her 
general  property  is  left  untouched ;  but  she  may  pledge 
or  bind  her  separate  property,  and  the  Court  may  proceed 
in  rem  against  it,  though  not  in  personam  against  herself. 
In  order  that  the  separate  property  may  be  thus  bound, 
it  is  not  necessary  that  she  should  execute  an  instrument 
expressly  referring  to  it,  or  purporting  to  exercise  a  power 
over  it.  It  is  sufficient  that  she  professes  to  act  as  2. feme 
sole.  For  the  Court  of  Chancery,  in  giving  her  the  capa- 
city to  hold  separate  property,  gives  also  the  capacity 
incident  *to  property  in  general,  of  incurring  debts  ri^Aa-\ 
to  be  paid  out  of  it;  and  enforces  payment  of 
such  debts  when  contracted,  not  as  personal  liabilities, 
but  by  laying  hold  of  the  separate  property,  as  the  only 
means  by  which  they  can  be  satisfied.  (7^)^ 

(A)  Murray  v.  Barlea,  4  Sim.  82 ;  3  M.  &  K.  209 ;  Aylett  v.  Ashton,  1  M. 
&  C.  105 ;  Tullett  V.  Armstrong,  4  Bea.  319 ;  Owens  v.  Dickinson,  Cr.  &  P. 
48;  Lord  v.  Wightwick,  2  Ph.  110;  [AVilton  v.  Hill,  25  L.  J.  .Ch.  157; 
Vaughan  v.  Vanderstegen,  2  Drew  363.] 

create  a  restraint  upon  alienation.  Thus  in  Baker  v.  Bradley,  7  De  G.,  M. 
&  G.  597,  there  was  a  provision  that  the  married  woman's  receipts  alone, 
or  those  of  some  person  authorized  to  receive  any  payments  of  the  said 
rents  and  income,  after  such  payment  should  have  become  due,  should 
alone  be  a  sufficient  discharge,  and  it  was  held  affirming,  Field  v.  Evans, 
15  Sim.  375,  that  this  was  a  valid  restraint.  To  the  same  eCFect  is  Free- 
man V.  Flood,  16  Geo,  528;  see,  however,  Cooke  v.  Husbands,  11  Md. 
504.  The  restraint  on  alienation,  though  a  creature  of  the  Court  of  Chan- 
cery, cannot  be  dispensed  with  by  the  Court,  even  where  the  interest  of 
the  married  woman  might  require  it.  Thus,  where  a  testator  gave  a 
legacy  to  a  married  woman,  on  condition  that  she  should  convey  to  a  third 
person  her  interest  in  certain  property  of  small  value,  included  in  an 
estate  which  was  settled  to  her  separate  use,  without  power  of  anticipa- 
tion, it  was  held  that  the  condition  could  not  be  accomplished,  and  the 
legacy  failed :  Robinson  v.  Wheelwright,  6  De  G.,  M.  &  G.  535. 

1  The  FiUglish  lule  is  that,  in  the  absence  of  any  restraint  on  alienation, 
a  feme  covert  has  the  same  power  of  disposition  over  personal  property 


138  ADAMs's    DOCTRINE     OF    EQUITY. 

The  fin-money  trust  is  so  far  similar  to  that  for  separate 
use,  that  in  both  cases  the  property  subject  to  the  trust 

settled  to  her  separate  use,  as  a,  feme  sole;  and  a  recent  decision  has  declared 
that  she  has  a  similar  capacity  as  to  her  real  estate :  Taylor  v.  Meads, 
34  L.  J.  Ch.  203  ;  11  Jur.  N.  S.  166.  Her  power  of  disposing  of  her  realty 
had  formerly  been  limited  to  the  rents  and  profits ;  but  in  the  case  last 
mentioned  it  was  said  that  she  could  convey  the  corpus  thereof  by  a  will  or 
by  a  deed  not  acknowledged  according  to  the  formalities  of  the  statute. 
See  Hill  on  Trustees  658,  note.  In  some  of  the  United  States  the  English 
doctrine  as  to  personalty  and  the  income  of  real  estate  is  followed :  Ives  v. 
Harris,  7  Rh.  Island  413  ;  Leaycraft  v.  Hedden,  3  Green  Ch.  551 ;  Imlay 
r.  Huntington,  20  Conn.  175 ;  Coleman  v.  Wooley,  10  B.  Monr.  320;  Vizon- 
neau  v.  Pegram,  2  Leigh  183 ;  Newlin  v.  Freeman,  4  Ired.  Eq.  312;  Brad- 
ford u.  Greenway,  17  Alab.  805;  Fears  u.  Brooks,  12  Geo.  200;  Coats  f. 
Robinson,  10  Miss.  757 ;  Cooke  v.  Husbands,  11  Md.  504. 

In  others  the  feme  has  only  such  power  of  disposition  as  is  given  by  the 
instrument  creating  the  trust:  Lancaster  v.  Dolan,  1  Rawle  231 ;  Reid  v. 
Lamar,  1  Strobh.  Eq.  27 ;  Porcher  v.  Reid,  12  Rich.  Eq.  349 ;  Doty  v. 
Mitchell,  9  Sra.  &  M.  435 ;  Marshall  v.  Stephens,  8  Humph.  159.  In  New 
York  the  Court  of  Appeals,  in  Jacques  v.  The  Methodist  Church,  17  Johns. 
548,  overruling  a  decision  of  Chancellor  Kent,  adopted  the  English  rule ; 
but  now,  under  the  revised  statutes,  the  interest  of  a  married  woman  is 
inalienable,  and  she  cannot  charge  or  affect  it  in  any  manner :  Noyes  v. 
Blakeman,  3  Sandf.  538  ;  2  Seld.  567  ;  Leggett  v.  Perkins,  2  Comstock  297. 
See  Yale  v.  Dederer,  18  N.  Y.  265  ;  22  Id.  4ri0  ;  Hill  on  Trustees  604,  note. 

In  Pennsylvania  it  was  at  one  time  held  that  the  "  Married  Woman's 
Act"  in  that  state  had  altered  the  rule :  Haines  v.  Ellis,  24  Penn.  St. 
253.  But  a  more  recent  and  better  considered  decision  has  established  the 
contrary :  Wright  v.  Brown,  44  Penn.  St.  224.  In  none  of  the  states  has 
the  doctrine  been  carried  to  the  extent  which  it  has  reached  in  England 
in  Taylor  v.  Meads  (supra)  ;  and  an  express  power  is  necessary  to  enable 
the  feme  to  dispose  of  the  corpus  of  real  estate. 

The  decisions  in  the  United  States,  as  to  the  liability  of  the  separate 
estate  to  the  debts  and  charges  of  a  feme  covert,  are  not  uniform.  In  some 
of  those  states  in  which  she  is  held  to  possess  an  implied  power  over  her 
separate' property,  the  decisions  establish  that,  in  order  to  make  a  debt  a 
charge  on  that  property,  there  must  be  some  reference  thereto,  or  the  debt 
be  contracted  for  the  benefit,  or  on  credit  thereof:  N.  A.  Coal  Co.  v.  Dyett, 
7  Paige  14;  Dickson  v.  Miller,  11  Sm.  &  M.  594;  Frazier  t'.  Brownlow,  3 
Ired.  Eq.  237.  In  others  the  broader  English  rule  is  followed  :  Collins  v. 
Lavenburg,  19  Alab.  685;  Coats  v.  Robinson,  10  Missouri  757;  Bell  v. 
Kellar,  13  B.  Monr.  381 ;  Lillard  v.  Turner,  16  Id.  374 ;  Whitesides  v. 


ORDINARY    AND    CHARITABLE    TRUSTS.  139 

is  placed  at  the  wife's  sole  disposal,  independent  of  her 
husband's  control.  But  in  one  respect  the  two  trusts  are 
'essentially  different :  the  one  places  the  property  at  her 
absolute  disposal  for  any  purpose  which  she  may  select ; 
the  other  secures  to  her  an  income  during  the  coverture, 
to  be  specifically  expended  in  her  dress  and  personal 
expenses,  lest  the  husband  should  refuse  her  an  adequate 
allowance.  It  is  a  fund,  therefore,  which  she  is  not 
entitled  to  accumulate,  but  may  be  made  to  spend  during 
the  coverture  by  the  intercession  and  advice,  and  at  the 
instance,  of  her  husband  :  it  seems  probable  that,  should 
she  refuse  to  spend  it,  the  husband  would  be  entitled  to 
withhold  it  from  her ;  and  it  has  been  decided  that,  if  it 
be  not  in  fact  paid  to  her,  no  claim  for  arrears  beyond  a 
year  can  be  made  by  herself,  and  no  claim,  even  for  that 
period,  by  her  personal  representatives,  (z) 

It  has  been  contended  that  alimony  is  in  the  nature  of 
separate  estate,  so  that  the  wife  may  bind  herself  by  con- 
tracts respecting  it,  and  that  a  bill  may  be  sustained  by 
her  executors  for  an  account.  This,  however,  is  not  the 
case.  "  Alimony  is  not  separate  estate,  but  a  mere  pro- 
vision for  maintenance  from  day  to  day,  decreed  by  a 
competent  Court  to  a   wife  legally  separated  from  her 

[i)  Howard  v.  Digby,  8  Bligh  224,  245,  267,  268  ;  Beresford  v.  Arch- 
bishop of  Armagh,  13  Sim.  643. 


Cannon,  23  Missouri  457.  Where,  however,  no  power  is  attributed  to  the 
feme  except  such  as  is  expressly  given,  as  in  Pennsylvania,  the  question 
cannot  arise,  except  perhaps  in  the  case  of  necessaries.  See  Wallace  v. 
Coston,  9  Watts  137.  In  South  Carolina,  however,  the  separate  estate  is 
held  liable  for  debts  contracted  on  its  account  and  for  its  use :  Magwood 
V.  Johnston,  1  Hill  Eq.  228  ;  Adams  v.  Maekay,  6  Rich.  Eq.  75.  Under 
the  Revised  Statutes,  in  New  York,  the  trustee  alone  has  the  power  to  sub- 
ject the  estate  to  debts  for  its  necessary  expenses,  &g.  :  Noyes  v.  Blakeman, 
3  Sandf.  S.  C.  531 ;  2  Seld.  567.  The  equitable  doctrines  on  these  subjects 
are  modified  in  many  of  the  States  by  the  "  Married  Woman's  Acts." 


140  ADAMS's    DOCTRINE    OF    EQUITY. 

husband,  and  is  subject  in  respect  to  its  amount,  con- 
tinuance, and  mode  of  payment,  to  the  discretion  of  the 

.-..-^    *Ecclesiastical  Court.^     The  wife  has  in  fact  no" 

r  471 

•-      -^    property  therein ;  and  the  Court  of  Chancery  can 

give  no  relief  respecting  it,  except  by  granting  a  writ  of 
ne  exeat  regno,  where  the  husband  is  about  to  leave  the 
kingdom,  on  the  special  ground  that  the  Ecclesiastical 
Court  cannot  compel  him  to  find  bail.(^) 

The  wife's  equity  for  a  settlement  attaches  on  her 
equitable  chattels  real,  and  on  such  of  her  equitable  choses 
in  action  as  are  capable  of  being  immediately  reduced  into 
possession,  and  it  authorizes  a  restraint  of  the  husband's 
right,  until  he  shall  have  made  an  adequate  settlement.'^ 

The  rule  at  law  with  respect  to  chattels  real  and  choses 
in  action,  of  which  the  wife  has  the  legal  ownership,  is 
that  in  both  cases,  if  the  wife  survive  her  husband,  and 
no  act  be  done  by  him  to  bar  her  right,  she  is  entitled  by 
survivorship  on  his  decease.  But  the  nature  of  the  hus- 
band's title  and  the  means  by  which  he  may  bar  his  wife's 
right,  differ  materially  in  the  two  cases.  With  respect  to 
terms  of  years  and  other  chattels  real,  the  right  of  the 

{k)  Vandergucht  ».  De  Blaquiere,  8  Sim.  315  ;  5  M.  &  C.  229. 

'  For  these  reasons  no  action  can  be  maintained  in  another  state  upon 
a  decree  of  alimony :  Barber  v.  Barber,  1  Chand.  (Wise.)  280.  Though 
arrears  before  a  decree  of  divorce  a  vinculis  in  another  state  may  be  re- 
covered in  the  latter :  Harrison  ».  Harrison,  20  Alab.  629.  See  Hill  on 
Trustees  663,  note. 

*  It  is  now  the  rule  in  England  that  the  wife's  equity  to  a  settlement  will 
be  sustained  as  well  against  real  as  personal  estate  :  Sturgis  v.  Champneys, 
.5  Myl.  &  Cr.  97  ;  though  this  doctrine  has  been  followed  reluctantly  :  Han- 
son V.  Keating,  4  Hare  1 ;  and  will  not  (it  is  said)  be  extended :  Gleaves  v. 
Paine,  1  De  G.,  J.  &  Sm.  87.  See,  however,  Newentiam  v.  Pemberton,  11 
Jur.  1071 ;  1  De  G.  &  Sm.  644.  In  Virginia  this  doctrine  has  been  ap- 
proved :  Poindexter  v.  Jeffries,  15  Grat.  363,  and  see  Rees  v.  Waters,  9 
Watts  90 ;  Hill  on  Trustees  626,  note. 


ORDINARY    AND    CHARITABLE    TRUSTS.  141 

husband  is  a  right  to  the  profits  during  coA^erture,  with  an 
absolute  right  of  disposal  by  act  inter  vivos  ;  and  if  he  sur- 
vive his  wife,  they  are  absolutely  his.  With  respect  to 
choses  in  action  his  right  is  more  limited ;  for  the  mere 
right  of  action  is  not  transferable,  but  remains  in  the  wife 
notwithstanding  her  coverture,  to  be  exercised  by  her  and 
her  husband  jointly.  If  it  is  so  exercised  by  them,  and 
the  chose  in  action  is  reduced  into  possession,  it  becomes, 
like  her  other  personalty  in  possession,  the  husband's 
property ;  but  until  that  time  it  remains  in  the  wife.  If 
she  survives,  she  takes  it  absolutely ;  and  if  the  husband 
survives,  he  takes  it  as  her  administrator,  and  not  in  his 
own  right.  (/)  ^ 

In  order  therefore  to  exclude  the  wife's  right  of  survi- 
vorship, the  husband  must  assign  her  chattel  real,  and 
must  reduce  into  possession  her  chose  in  action.  And  if 
*he  can  effectuate  this  by  course  of  law,  there  is  r^j^o-i 
no  equity  to  restrain  him.  It  might  therefore  be 
expected  that  where  the  wife's  interest  is  equitable,  instead 
of  legal,  the  analogy  of  law  would  be  pursued  in  equity, 
so  that  the  husband's  assignee  of  the  chattel  real  would 
be  entitled  wholly  to  exclude  the  wife,  and  the  husband 
himself  might  proceed  of  right  in  equity  to  reduce  into 
possession  the  chose  in  action.  The  practice  of  the  Court, 
however,  is  otherwise.  The  trustee  or  holder  of  the  pro- 
perty may  transfer  it  without  suit  to  the  husband,  and 
will  not  be  responsible  for  so  doing.  But  if  he  refuses  to 
do  so,  or  a  bill  be  filed  on  the  wife's  behalf  to  prevent  him, 
so  that  the  property  is  brought  within  the  control  of  the 
Court,  and  the  assistance  of  the  Court  is  required  to  give 

[1)  2  Steph.  Blacks.  300. 

^  For  authorities  in  the  United   States,  on  this  question,  see  Hill  on 
Trustees,  4th  Am.  ed.  042,  note,  and  see  post  142,  note. 


142  ADAMs's     DOCTRINE    OF    EQUITY. 

any  benefit  in  it  to  the  husband  or  his  assignee,  it  is  an 
established  equity,  founded  on  long  practice,  that  the  hus- 
band shall  not  have  it,  if  it  exceeds  200/.,^  unless  he  makes 
or  has  already  made  an  adequate  provision  for  his  wife 
and  children.  This  is  termed  the  wife's  equity  for  a  set- 
tlement. It  is  unaffected  by  any  act  or  assignment  of  the 
husband;  and  the  only  mode  by  which  it  can  be  barred, 
is  by  the  wife's  personal  waiver  in  Court  on  examination 
apart  from  her  husband,  (m)  If  the  chose  in  action  be  one 
which  the  husband  cannot  reduce  into  present  posses- 
sion, as  if  it  be  to  take  effect  after  the  coverture,  or  on  the 
determination  of  an  existing  life  estate,  the  wife  is  en- 
titled to  the  whole,  notwithstanding  her  marriage,  and 
there  is  no  interest  in  the  husband  on  which  the  equity 
can  attach.^ 

(m)  Elibank  v.  MontoHeu,  5  Ves.  737  ;  Murray  v.  Elibank,  10  Yes.  84  ; 

13  Ves.  1  ;  Johnson  v.  Johnson,  1  J.  &  W.  452 ;  Sturgis  v.  Champneys,  5 
M.  &  C.  97  ;  Hanson  v.  Keating,  4  Hare  1. 

^  It  is  not  material  now,  in  England,  that  the  property  should  exceed 
200/.:  Cutlers'  Trust,  14  Beav.  220;  Kincaid's  Trusts,  1  Drewry  326, 
where  it  was  said  that  the  rule  applied  to  taking  the  wife's  assent  to  part- 
ing with  her  interest. 

^  The  doctrine  stated  in  the  text  is  sustained  by  the  American  authori- 
ties :  Tevis's  Rep.  v.  Richardson's  Heirs,  7  Monroe  654  ;  Fabre  v.  Golden, 
1  Paige  166 ;  Smith  v.  Kane,  2  Id.  303 ;  McElhatton  v.  Howell,  4  Hey- 
wood  19,  24  ;  Kenny  v.  Udal,  3  Cowen  590  ;  s.  c,  Kenney  v.  Udall,  5 
Johns.  Ch.  464  ;  Elliott  v.  Waring,  5  Monroe  340 ;  Van  Duzer  v.  Van 
Duzer,  6  Paige  366 ;  Whitesides  v.  Darris,  7  Dana  107  ;  Andrews  &  Bro. 
V.  Jones  et  al.,  10  Ala.  400  ;  Rees  v.  Waters,  9  Watts  90 ;  Rorer  v.  O'Brien, 
10  Penn.  St.  212  5  James  v.  Gibbs,  1  Patt.  &  Head  277  ;  Moore  i?.  Mooney, 

14  B.  Monroe  259  ;  Bell  v.  Bell,  1  Kelly  637 ;  see  also,  cases  in  notes  to 
Murray  v.  Lord  Elibank,  1  Lead  Gas.  Eq.  348,  3d  Am.  ed. ;  Buncombe  v. 
Greenacre,  7  Jur,  N.  S.  175  ;  Hill  on  Trustees,  4th  Am.  ed.632,  note.  But 
not  in  New  Hampshire  and  North  Carolina :  Parsons  v.  Parsons,  9  N.  11. 
309  ;  Allen  v.  Allen,  6  Ired.  Eq.  293.  And  a  court  of  equity  will  go  to  a 
great  length  in  protecting  the  wife,  and  the  doctrine  has  been  carried  so 
far  that  the  court  say  that  the  husband  and  his  assignees  will  be  restrained 


ORDINARY    AND    CHARITABLE    TRUSTS.  143 

The  equity,  though  called  that  of  the  wife,  is  effectuated 
by  a  settlement  on  her  children  also,  as  being,  if  the  pro- 
perty is  settled  at  all,  the  most  proper  mode  of  doing  it ; 
and  the  wife  cannot  ^separate  their  interest  from  her 
own,  or  claim  a  settlement  on  herself  to  their  exclusion. 
Their  right,  however,  though  inseparable  from  hers,  is 
*merely  incidental,  and  does  not  constitute  an  in- 
dependent  equity;  and  therefore,  if  she  die  with-  ^  -■ 
out  having  asserted  her  right,  or  if,  after  its  assertion  and 
while  the  matter  rests  in  proposal,  she  come  in  and  waive 
it,  the  husband  after  her  death  may  receive  the  property, 
and  the  children  have  no  equity  to  compel  a  settlement,  (w) 

The  provision  usually  made  is  one  commencing  from 
the  husband's  decease ;  for,  during  his  lifetime,  he  is  the 
proper  person  to  maintain  his  family.  And  accordingly, 
if  the  wife's  interest  be  a  mere  life  income,  the  equity 
does  not  attach ;  for  the  payments  during  the  coverture 
are  properly  receivable  by  the  husband;  and  those  to 
accrue  afterwards  are  reversionary,  and  not  reducible 
into  the  husband's  possession,  (o)  If,  however,  the  hus- 
band does  not  in  fact  maintain  his  wife,  or  if  he  has 
deserted  her,  or  by  ill  usage  has  driven  her  from  him ; 

{n)  Murray  v.  Elibank,  10  Ves.  84 ;  s.  c,  13  Ves.  1 ;  Lloyd  v.  Williams, 
1  Mad.  450 ;  Fenner  v.  Taylor,  2  R.  &  M.  190;  Hodgcns  v.  Hodgens,  11 
Bli.  62,  103;  4  CI.  &  F.  323,  371 ;  Lloyd  v.  Mason,  5  Hare  149. 

(o)  Wright  y.  Morley,  11  Ves.  12,  18;  Elliott  v.  Cordell,  5  Mad.  149; 
Stanton  v.  Hall,  2  R.  &  M.  175,  180 ;  StiflFe  v.  Everitt,  1  M.  &  C.  37. 

in  obtaining  possession  of  his  property  by  process  of  law,  if  she  has  no 
other  means  of  supporting  herself  and  children,  unless  a  suitable  provision 
is  allowed  her  out  of  it :  Van  Epps  v.  Van  Deusen,  4  Paige  63.  The  equity 
to  a  settlement  can  only  be  waived  on  a  privy  examination  by  a  commis- 
sioner appointed  for  the  purpose.  A  transfer  acknowledged  before  an 
ordinary  commissioner  out  of  the  state,  will  not  be  enough  :  Coppidge  r. 
Threadgill,  3  Sneed  577. 


144  ADAMS's    DOCTRINE    OF    EQUITY. 

or  if  he  lias  become  incapable  of  maintaining  her,  as  by 
his  bankruptcy  or  by  an  assignment  of  all  his  property  in 
trust  for  creditors,  an  immediate  provision  will  be  directed. 
In  this  case  it  is  immaterial  whether  the  wife's  interest 
is  for  life  only,  or  .of  a  more  permanent  character  5^  and 
it  is  competent  for  the  Court  to  settle  such  a  proportion 
on  her  as  the  circumstances  require,  or  even  to  settle  the 
entire  income,  if  the  husband  has  already  received  other 
portions  of  her  fortune.  If  the  desertion  be  on  the  part 
of  the  wife,  the  Court  will  give  her  no  benefit  from  the 
fund ;  but  it  has  been  held  that,  as  the  husband  does  not 
in  fact  maintain  her,  he  cannot  be  entitled  to  the  whole 
property,  and  the  dividends  therefore  should  be  paid  into 
Court.  (;?)2 

3.  The  equitable  ownership  is  governed  by  the  same 
laws  of  devolution  and  transfer  as  the  legal  one. 
r*501  *The  maxims  therefore  of  the  common  law  as 
to  descent,  possessio  fratrts,  customs  of  gavelkind 
and  borough  English,  and  the  like,  have  been  always  en- 
forced by  analogy  in  equity,  subject  however  to  an  excep- 
tion in  the  case  of  dower,  which  we  shall  presently  notice. 
A  trust  estate  may  be  entailed  or  otherwise  settled  by  the 
owner,  and  will  devolve  regularly  in  the  line  of  entail ;  it 
might,  until  the  late  statute,  be  again  disentailed  by  a  fine 
or  recovery,  and  may  now  be  disentailed  by  a  statute  deed, 
in  the  same  manner  as  a  legal  estate.    But  a  trust  of  realty 

{p)  Ball  V.  Montgomery,  2  Ves.  Jun.  191 ;  Duncan  w.  Campbell,  12  Sim. 
616  ;  Gardner  v.  Marshall,  14  Sim.  575. 

'  This  is  overruled  with  regard  to  a  purchaser  for  value  of  a  life  interest 
of  the  wife  ;  and  no  equity  to  a  settlement  arises  in  such  case  whether  the 
husband  maintain  her  or  not :  Tidd  v.  Lister,  3  De  G.,  M.  &  G.  857  ;  afiPg 
8.  c.  10  Hare  157. 

*  Though  see  as  to  adultery.  Greedy  v.  Lavender,  13  Beav.  62 ;  Carterv. 
Carter,  14  Sm.  &  Marsh.  59. 


ORDINARY    AND    CHARITABLE    TRUSTS.  145 

is  not  liable  to  escheat ;  for  escheat  is  merely  an  incident 
of  tenure,  arising  out  of  the  feudal  system,  whereby  the 
escheated  estate  on  the  death  without  heirs  of  the  person 
last  seised  escheats  to  the  lord  as  reverting  to  the  original 
grantor,  there  being  no  longer  a  tenant  to  perform  the 
services  incidental  to  the  tenure.  It  is  therefore  inappli- 
cable to  estates  which  do  not  lie  in  tenure,  such  as  rents, 
commons,  &c.,  and  is  equally  inapplicable  to  an  equitable 
estate.  If  the  line  of  descent  fails  by  the  death  of  the 
cestui  que  trust  w'ithout  heirs,  the  trustee  will  have  the 
enjoyment  as  the  legal  owner,  for  there  is  no  one  who  can 
sue  a  subpoena  against  him. (5')^  If  the  descent  fails  by 
attainder,  there  appears  to  be  some  doubt  as  to  the  posi- 
tion of  the  trustee,  as  to  his  right  of  holding  against  the 
felon  if  pardoned,  or  against  his  heir  if  the  felon  be  exe- 
cuted. The  forfeiture  to  the  Crown  by  attaint  of  treason 
has  been  specially  extended  by  statute  to  trusts,  (r)  And 
where  a  trust  of  land  is  declared  for  an  alien,  the  Crown 
is  entitled,  as  in  the  case  of  a  legal  estate ;  for  the  inca- 
pacity *of  an  alien  is  not  an  incident  of  tenure,  but  r^r  -1  -i 
a  result  of  public  policy,  which  disables  an  alien 

[q)  On  the  subject  of  the  escheat  and  forfeiture  of  trust  estates  and  the 
respective  rights  of  the  Crown  and  trustee  on  the  death  of  the  cestui  que 
trust  without  heirs  or  his  attainder :  vide  Burgess  v.  Wheate,  1  Eden  Ch. 
Cas.  177  ;  [Sweeting  v.  Sweeting,  33  L.  J.  Ch.  211  ;]  Onslow  v.  Wallis,  1 
Macn.  &  Gord.  506. 

(r)  33  lien.  8,  c.  20,  s.  2  ;  1  Hale  P.  C.  248 ;  but  see  King  v.  Dacombe, 
Cro.  Jac.  512.  In  case  of  the  death  of  a  trustee  or  mortgagee  without 
heirs,  or  his  attainder,  it  is  provided  by  a  recent  statute,  4  &  5  Wm.  4,  c. 
23,  that  no  lands,  chattels  or  stock,  vested  in  such  person,  upon  any  trust, 
or  by  way  of  mortgage,  shall  escheat  or  be  forfeited,  but  shall  be  conveyed 
by  the  Court  of  Chancery,  as  the  case  may  require. 

'  It  may  well  be  doubted  whether  this  proposition  would  hold  under  the 
statutes  of  distribution  in  the  United  States  generally.     See  Matthews  v. 
Ward,  10  Gill  &  John.  443  ;  Darrah  v.  McNair,  1  Ashm.  236 ;  4  Kent's 
Com.  425. 
10 


146  ADAMS's    DOCTRINE    OF    EQUITY. 

from  purchasing  except  for  the  king's  use.^  In  the  case 
of  chattels,  whether  real  or  personal,  the  doctrine  of  es- 
cheat has  no  place,  but  if  the  cestui  que  trust  die  intestate 
and  without  leaving  next  of  kin,  his  interest  vests  in  the 
Crown  as  lona  vacantia,  and  if  he  he  convicted  of  treason 
or  felony,  it  has  always  been  deemed  forfeitable  to  the 
Crown,  {i) 

The  subjection  of  equitable  estates  to  the  legal  rules  of 
devolution  and  transfer  admits  of  two  exceptions  :  the  one 
real,  in  their  exemption  from  dower,^  the  other  apparent, 
in  the  attendance  of  satisfied  terms  on  the  inheritance. 

The  right  of  a  widow  to  dower  at  common  law  was  a 
right  to  have  a  third  part  of  her  husband's  freehold  lands 
of  inheritance  assigned  to  her  for  her  use,  on  his  decease, 
for  her  life.  And  as  the  right  was  given  as  a  matter  of 
general  policy,  it  might  have  been  expected  that  Courts 
of  equity,  following  the  policy  of  the  law,  would  have 
annexed  the  same  right  to  an  equitable  estate.     It  was, 

[s]  1  Steph.  Bl.  401,443-,  4  Id.  446;  Att.-Gen.  v.  Sands,  Freem.  130; 
Lewin  on  Trustees  556 ;  Burgess  v.  Wheate,  1  Eden  177 ;  Williams  v. 
Lonsdale,  3  Ves.  752 ;  Taylor  v.  Hagarth,  14  Sim.  8  ;  [Cradock  v.  Owen,  2 
Sm.  &Giff.  241."! 

^  Barrow  v.  "Wadkin,  24  Beav.  1.  See,  however,  Rittson  v,  Stordy,  3  Sm. 
&  Giff.  230. 

^  The  general  principle  is,  that  at  common  law  a  wife  was  not  entitled  to 
dower  in  a  trust  estate  :  Stevens  v.  Smith,  4  J.  J.  Marsh.  64  ;  Danforth  v. 
Lowry,  3  Heywood  61  ;  Ilerron  v.  Williamson,  6  Litt.  Sel.  Cas.  250  ;  Lenox 
V.  Notrebe,  1  Hempst.  251.  Though  in  some  of  the  states,  as  in  Kentucky 
and  Virginia,  special  statutes  have  been  enacted,  relieving  the  wife  from 
this  disability :  Stevens  v.  Smith,  before  cited,  and  Braxton  v,  Lee,  4  Hen. 
&  Munf.  376. 

By  the  usage  and  law  of  Pennsylvania,  a  woman  is  entitled  to  dower  in 
a  trust  estate :  Shoemaker  r.  Walker,  2  S.  &  R.  554 ;  Dubs  v.  Dubs,  31 
Penn.  St.  149. 

See  Williams  on  Real  Property,  229,  note,  and  post,  note  to  page  233, 
234. 


ORDINARY    AND    CHARITABLE    TRUSTS.  147 

however,  decided  otherwise  :  and  the  reason  assigned  is, 
that  long  before  the  question  was  raised,  a  general  im- 
pression had  prevailed  that  the  widow  would  be  barred  by 
trust,  and  that  many  estates  had  been  purchased  on  the 
faith  of  this  opinion,  the  titles  to  which  would  be  shaken 
and  much  mischief  produced,  by  a  decision  to  the  con- 
trary. And,  on  this  ground  of  anticipated  inconvenience, 
whether  a  judicious  one  or  not,  the  decision  in  question 
was  made,  (t)  The  point  is  worth  noticing,  as  having  for 
many  years  been  an  anomaly  in  the  doctrines  of  equity. 
But  by  the  passing  of  the  Dower  Act,{u)  which  abolishes 
the  distinction  in  this  respect  between  legal  and  equitable 
estates,  *and  at  the  same  time  gives  to  the  hus-  r*Ko-| 
band  a  control  over  his  wife's  dower,  which  pre- 
viously he  did  not  possess,  it  has  ceased  to  be  of  much 
practical  importance. 

The  exception  in  respect  to  attendant  terms  is  rather 
apparent  than  real.  It  frequently  happens  that  long  terms 
of  years  are  created  in  real  estates,  for  securing  moneys 
lent  on  mortgage,  for  raising  jointures  and  portions  for 
children,  and  for  other  special  trusts;  and  that  after  the 
fulfilment  of  the  trust,  the  terms  continue  in  existence. 
It  might  prima  facie  be  supposed,  that  so  long  as  the  legal 
term  subsists,  the  trust  under  it  is  in  the  nature  of  a 
chattel,  and  will  devolve  to  the  executor  and  not  to  the 
heir.  But  the  rule  is  rightly  otherwise.  For  the  trust 
of  the  term,  under  these  circumstances,  is  not  for  any  in- 
dividual person,  but  for  the  owner  of  the  inheritance, 
whoever  he  may  be.  This  would  be  the  effect  if  a  sur- 
render were  compelled;  and  the  mere  absence  of  a  legal 
surrender  does  not  change  the  effect  in  equity.     In  ac- 

{t)  D'Arcy  v.  Blake,  2  Sch.  &  L.  387. 
(u)  3  &  4  Wm.  4,  c.  105. 


148  ADAMS's    DOCTRINE    OF    EQUITY. 

cordance  with  this  principle,  a  term  may  be  made  attend- 
ant, either  by  implication  of  law,  where  the  effect  of  a 
surrender  would  be  immediate  merger,  or  by  express  de- 
claration of  the  parties.  And  the  trust  of  such  attendant 
term  will  follow  the  descent  of  the  inheritance,  and  the 
conveyances,  assurances,  and  charges  of  the  owner.  It 
may,  however,  be  afterwards  disannexed  by  the  owner 
and  converted  into  a  term  in  gross ;  and  it  will  be  so  dis- 
annexed whenever  it  fails  of  a  freehold  to  support  it,  or 
is  divided  from  the  inheritance  by  distinct  limitations,  (i') 
The  effect  of  getting  in  an  attendant  term,  where  two  pur- 
chasers or  encumbrancers  are  contending  for  priority,  will 
be  hereafter  considered  under  a  different  head.(w) 

The  doctvme{ww)  of  attendant  terms  will  shortly  be- 
come of  little  importance;  for,  by  8  &  9  Vict.  c.  112,  it  is 
enacted  that  every  term  of  years  which  on  the  31st  Dec. 
p5j,rq-|  1845,  ^should  be  attendant  on  the  inheritance, 
should  cease  and  determine  on  that  day,  except  for 
the  purpose  of  any  protection  which  it  would  have  afforded 
if  it  had  continued  to  exist,  but  had  not  been  assigned  or 
dealt  with  after  that  day ;  and  that  every  term  which  after 
that  day  should  become  attendant,  should  immediately  on 
its  becoming  so  attendant  cease  and  determine. 

The  means  by  which  an  equitable  ownership  is  trans- 
ferred or  changed,  where  its  subject-matter  is  personal 
estate,  are  analogous  to  those  which  apply  to  a  legal 
ownership,  rather  than  strictly  identical  with  them.  The 
distinction  originates  in  the  doctrine  that  personal  property 
passes  at  law  by  mere  delivery,  which  where  an  equitable 

(»)  Willoughby  v.  Willoughby,  1  Term  Rep.  763  ;  C».pel  v.  Girdler,  9 
Ves.  509  ;  3  Sug.  V.  &  P.  10th  edit.  c.  15. 
(w)  Infra,  Priorities. 
[ww)  See  the  case  of  Doe  d.  Clay  v.  Jones,  13  Q.  B.  774. 


ORDINARY    AND    CHARITABLE    TRUSTS.  149 

interest  is  transferred,  may  not  be  practicable;  and  there- 
fore in  order  to  pursue  as  nearly  as  possible  the  analogy 
of  law,  it  is  required  that  the  assignment  of  an  equitable 
interest  should  be  perfected  by  notice  to  the  trustee,  so 
as  to  deprive  the  assignor  of  subsequent  control,  and  to 
effect  a  constructive  delivery  to  the  assignee,  (.r)^  It  is 
otherwise  with  respect  to  real  estate;  for  real  estate 
passes  by  title,  and  not  by  delivery,  and  the  character  of 
the  grantor's  interest,  whether  legal  or  equitable,  does 
not  affect  the  terms  of  his  deed.  The  period  at  which 
the  transfer  of  an  equity  becomes  complete  is  often  ma- 
terial to  be  considered,  where  such  transfer  has  been 
made  without  consideration,  or  where  several  purchasers 
or  encumbrancers  have  acquired  conflicting  rights ;  but 
its  effect  in  these  cases  will  be  hereafter  separately  con- 
sidered. (^) 

The  principle  of  constructive  delivery  by  notice  to  the 
trustee  is  applied  also  to  a  debt  or  other  chose  in  action. 
The  right  of  recovering  such  an  interest,  like  that  of  en- 
forcing a  trust,  is  in  strictness  merely  a  right  of  litigation ; 
and  except  in  the  case  of  negotiable  securities,  is  not 
capable  of  transfer  at  law.  But  if  it  be  in  substance  a 
right  *of  property,  it  is  treated  in  equity  as  of  that  r*;^4-| 
character,  and  may  be  transferred  by  an  assign- 

{x)  Dearie  r.  Hall,  3  Rues.  1 ;  Foster  v.  Cockerell,  3  CI.  &  F.  456 ;  Jones 
r.  Jones,  8  Sim.  633 ;  Wilmont  p.  Pike,  5  Hare  14 ;  [Voyle  v.  Hughes,  2 
Sm.  &  Giff.  18  ;  see  Kekewich  v.  Manning,  1  De  Gex,  Macn.  &  G.  176  ; 
Stocks  V.  Dobson,  4  Id.  11 ;  Hill  on  Trustees  140  and  698,  4th  Am.  ed.] 

(y)  Infra,  Priorities. 


^  In  the  United  States,  however,  notice  is  not  generally  held  necessary 
to  perfect  the  assignee's  title  :  U.  S.  v.  Vaughan,  3  Binn.  394 ;  Muir  v. 
Schenck,  3  Hill  228  ;  Littlefield  v.  Smith,  17  Maine  327  ;  Warren  r.  Cope- 
lin,  4  Mete.  594 ;  contra,  Vanbuskirk  v.  Ins.  Co.,  14  Conn.  145.  Though 
a  payment  without  notice  is,  of  course,  good. 


150  ADAMS's    DOCTRINE    OF    EQUITY. 

merit  or  agreement  to  assign  perfected  by  notice  to  the 
party  liable.  If  the  right  is  not  substantially  a  title  to 
property,  but  a  mere  litigious  right,  as,  for  instance,  the 
right  of  action  for  a  personal  wrong,  or  for  suing  in  equity 
to  redress  a  fraud,,  it  cannot  be  made  the  subject  of  as- 
signment ;  for  the  transaction  would  be  directly  adverse 
to  the  policy  of  the  law,  which  prohibits  the  encourage- 
ment of  litigation,  by  the  introduction  of  strangers  to 
enforce  rights  which  the  owners  are  not  disposed  to 
maintain.  (0) 

The  regular  mode  of  transferring  a  debt  is  by  an  in- 
strument purporting  to  assign  it,  accompanied  by  a  power 
of  attorney  to  sue  in  the  name  of  the  assignor,  and  fol- 
lowed by  notice  to  the  party  from  whom  the  assignor  is 
to  receive  payment.  There  is  not,  however,  any  special 
form  necessary,  but  any  declaration,  either  by  writing  or 
word  of  mouth,  that  a  transfer  is  intended,  will  be  effect- 
ual, provided  that  it  amount  to  an  appropriation  to  the 
assignee ;  for  inasmuch  as  the  fund  is  not  assignable  at 
law  nor  capable  of  manual  possession,  an  appropriation  is 
all  that  the  case  admits.  («) 

Possible  and  contingent  interests  are  also  to  a  certain 
extent  assignable  in  equity,^  on  the  same  principle  as 

(z)  Prosser  r.  Edmonds,  1  Y.  &  C.  Exch.  481 ;  Wood  v.  Downes,  18 
Yes.  120 ;  Hunter  v.  Daniel,  4  Hare  420.  [See  American  note  to  Row  i'. 
Dawson,  2  Lead.  Cas.  Eq.  612.] 

(a)  Gardner  v.  Lachlan,  4  M.  &  C.  129 ;  Thompson  v.  Speirs,  13  Sim. 
469;  Burn  v.  Carvalho,  4  M.  &  C.  690;  Cook  v.  Black,  1  Hare  390; 
McFadden  v.  Jenkyns,  Id.  458  ;  1  Ph.  153  ;  Malcolm  v.  Scott,  3  Hare  39, 
52;  Braybrooke  v.  Meredith,  13  Sim.  271. 

^  The  student  will  find  a  very  clear  statement  of  the  difiFerence  between 
assignments  of  future  and  contingent  interests  in  equity  and  at  law,  in  the 
opinion  of  Lord  Chan.  Westbury  in  Holroyd  v.  Marshal,  10  H.  L.  Cas.  191  ; 
see  also,  Hart  v.  The  Farmers'  Bank,  33  Yerm.  252 ;  Stover  v.  Eycleshimer, 
46  Barb.  84 ;  Pennock  v.  Coe,  23  How.  117 ;  Bayler  v.  The  Commonwealth, 


ORDINARY    AND    CHARITABLE    TRUSTS.  151 

choses  in  action,  although,  by  reason  of  their  being  devoid 
of  any  substantive  or  certain  character,  they  were  untU 
8  &  9  Vict.  c.  106,  and  in  the  case  of  personal  estate  still 
are,  incapable  of  assignment  at  law.  In  this  way  a  con- 
tingent legacy  or  other  interest  may  be  made  the  subject 
of  equitable  assignment ;  and  so  also  may  the  freight  to 
be  earned  by  a  ship  on  some  future  vx)yage,  although  the 
earning  of  such  freight  *is  at  the  time  of  assign-  r:5:^r-| 
ment  a  mere  expectant  possibility.  (^)  There  is 
however,  a  distinction  between  choses  in  action  and  pos- 
sibilities in  personalty  with  respect  to  the  completion  of 
an  equitable  transfer.  In  the  case  of  choses  in  action, 
the  transfer  may  be  completed,  as  we  have  already  seen, 
by  a  constructive  delivery ;  but  in  the  case  of  possibilities, 
the  interest,  though  a  substantial  one,  is  for  the  time  being 
non-existent,  and  there  are  no  means  of  perfecting  the 
possession  by  notice  or  otherwise,  but  the  contract  re- 
mains in  fieri  until  the  contingency  determines,  (c) 

The  next  subject  for  notice  is  the  legal  ownership  of 
the  trustee,  which  confers  on  him  at  law  an  absolute  do- 
minion, but  is  considered  in  equity  as  subservient  to  the 
trust ;  so  that  the  trustee  is  bound  to  use  it  for  those 
purposes,  and  those  only,  which  were  contemplated  by 
the  grantor :  to  account  for  and  protect  the  property 
whilst  the  trust  continues ;  to  restore  it  to  the  parties 
entitled  when  the  trust  is  at  an  end;  and  not  to  avail 
himself  of  his  fiduciary  character  for  any  object  of  per- 
sonal benefit. 

(6)  Langton  v.  Horton,  1  Hare  549. 

(c)  Meek  v.  Kettlewell,  1  Hare  464  ;  1  Ph.  342.     [See,  however,  contra, 
Kekewich  v.  Manning,  1  De  G.,  M.  &  Gord.  176.] 

40  Penn.  St.  37;  Hill  on  Trustees  44;  see  on  this  subject,  Mitchell  v. 
Winslow,  2  Story  630;  Letcher  v.  Shroeder,  5  J.  J.  Marsh.  513  ;  Varick  v. 
Edwards,  1  Hoff.  Ch.  382 ;  Merriweather  v.  Herran,  8  B.  Monr.  162. 


152  ADAMS's    DOCTRINE    OF    EQUITY. 

A  trustee  is  bound  to  use  his  legal  dominion  for  those 
purposes,  and  those  only,  which  were  contemplated  by 
the  grantor.^  If,  for  instance,  he  is  trustee  for  sale  of  an 
estate,  he  must  not  sell  unless  there  be  a  legitimate  object 
in  view ;  and,  when  he  does  sell,  he  must  take  care  that 
the  interests  of  all  his  cestuis  que  trust  are  duly  consulted, 
and  that  all  prudent  precautions  are  taken  for  obtaining 
the  full  value,  (c?)^  If  he  is  a  trustee  of  renewable  lease- 
holds, he  must  be  careful  that  the  renewals  are  made  in 
the  usual  course,  and  the  requisite  funds  provided  for  that 
purpose,  (e)  If  he  is  a  trustee  of  money  secured  by  cove- 
p5j.K^-|  nant,  *or  of  other  outstanding  property,  he  must 
realize  or  secure  it  with  all  convenient  speed.  (/) 
And  if  he  is  trustee  of  moneys  for  the  purpose  of  invest- 
ment, he  should  invest  them  in  three  per  cent,  consols  as 
the  fund  sanctioned  by  the  Court,  or  on  such  other  securi- 

[d)  Ord  V.  Noel,  5  Mad.  438  ;  Mortlock  v.  Buller,  10  Ves.  292,  308  ;  Wil- 
kins  V.  Fry,  1  Meriv.  244,  268 ;  2  Sug.  on  Powers  486.  [See  for  American 
authorities  on  powers  of  sale,  notes  to  Hill  on  Trustees,  4  Am.  ed.,  735.] 

[e)  Lord  Montfort  v.  Lord  Cadogan,  17  Ves.  485 ;  Greenwood  v.  Evans, 
4  Bea.  44  ;  Shaftesbury  v.  Marlborough,  2  M.  &  K.  Ill ;  Bennett  v.  Col- 
ley,  2  M.  &  K,  233. 

[f)  Maitland  v.  Bateman,  13  Law  Journ.  273. 

^  A  sale  made  under  a  deed  of  trust,  after  the  debt  secured  by  it  has 
been  fully  paid,  is  void,  there  being  no  valid  subsisting  power  under  the 
deed :  Penny  ».  Cook,  19  Iowa  538. 

^  The  sale  must  be  effected  within  a  reasonable  time  :  Walker  v.  Shore, 
19  Ves.  387  ;  but  it  must  not  be  hastened  to  a  disadvantage  :  Hunt  v.  Bass, 
2  Dev.  Eq.  297 ;  and  the  court,  on  proper  cause  shown,  will  give  a  trustee 
leave  to  delay  a  sale :  Morris  v.  Morris,  4  Jur.  N.  S.  802-964.  As  a  general 
rulQ.,the  sale  should  be  at  auction,  although  it  is  not  absolutely  essential, 
and  private  sales  are  now  allowed  and  regulated  by  statute  in  England  and 
in  some  of  the  United  States  as  in  New  York  and  Pennsylvania.  Where, 
however,  the  trust  instrument  expressly  requires  a  public  sale,  that  method 
must  be  adopted  :  Greenleaf  v.  Queen,  1  Peters  145.  A  power  of  sale  will 
not  authorize  an  exchange  :  Ringgold  v.  Ringgold,  1  H.  &  G.  11. 


ORDINARY    AND    CHARITABLE    TRUSTS.  153 

ties,  if  any,  as  are  authorized  by  his  trust  ;^  and  should  at 
the  same  time  execute  a  declaration  of  trust,  so  that  in 
the  event  of  his  bankruptcy  or  insolvency  the  fund  may 
be  identified.  (gY  If  there  be  an  express  power  to  lend 
on  personal  security,  it  will  of  course  warrant  a  loan  to  a 
responsible  person  on  his  mere  bond  or  promissory  note ; 
but  such  a  loan  would  not  be  warranted  by  an  authority 
to  adopt  such  security  as  the  trustee  shall  think  safe ;  (h) 
nor  would  a  power  to  lend  generally  on  personal  security 
authorize  an  advance  to  a  trader  by  way  of  accommoda- 
tion, or  a  loan  to  one  of  the  trustees  themselves.  (?)  If 
the  fund  is  already  outstanding^on  personal  security,  but 
no  authority  is  given  to  leave  it  so,  the  trustee  is  bound 

{g)  Clough  V.  Bond,  3  M.  &  C.  496 ;  Stickney  v.  Sewell,  1  M.  &  C.  8 ; 
Ames  V,  Parkinson,  7  Bea.  379. 

ih)  Bullock  V.  Wheatley,  1  Coll.  130;  Styles  v.  Guy,  4  Y.  &  C.  571,  in 
note ;  Walker  c.  Symonds,  3  Sw.  1,  62. 

(z)  Langston  v.  Ollivant,  Coop.  33 ; v.  Walker,  5  Russ.  7. 

^  Where  trust  funds  are  directed  by  will  to  l)e  invested  in  certain  securi- 
ties, and  such  securities  cannot  be  purchased,  the  trustee  may  invest  in 
such  a  manner  as  shall  seem  to  him  safe  and  productive :  Mclntyre  r. 
Zanesville,  17  Ohio  352.  Qucere,  if  he  can  without  applying  to  the  court 
for  authority. 

'  Investments  by  trustees  are  generally  regulated  both  in  England  and 
in  this  country  by  statute.  See  Hill  on  Trustees  560-561,  in  notes.  The 
investment  of  trust  funds  in  personal  security  is  a  breach  of  trust:  Nyce's 
Estate,  5  W.  &  S.  254 ;  Wills'  Appeal,  22  Penn.  St.  330 ;  Smith  r.  Smith, 
4  John.  Ch.  281 ;  De  Jarnette  r.  De  Jarnette,  41  Ala.  708.  Massachu- 
setts appearing  to  be  the  only  state  in  which  this  rule  does  not  obtain : 
Lovell  V.  Minot,  20  Pick.  119;  Clark  v.  Garfield,  8  Allen  427.  Trustees 
are  chargeable  with  interest  if  they  have  made  use  of  the  money  them- 
selves, or  have  been  negligent  in  not  paying  it  over,  or  properly  investing 
it :  Bruner's  Appeal,  57  Penn.  St.  46.  If  the  fond  is  directed  to  be  in- 
vested at  a  specified  time,  it  is  to  be  considered  as  invested  at  that  time, 
and  bearing  interest  from  that  date :  Halsted  v.  Meeker's  Ex'rs,  3  Green 
(X.  J.)  1.36.  And  in  some  cases  they  are  chargeable  with  compound  in- 
terest. The  authorities  on  this  subject  will  be  found  collected  in  the  notes 
to  Hill  on  Trustees,  pp.  570-571,  4th  Am.  ed. 


154  ADAMs's    DOCTRINE    OF    EQUITY. 

to  call  it  in  and  make  a  proper  investment.  If,  however,  it 
is  invested  on  an  actual  security,  the  trustee  is  not  bound 
to  call  it  in  for  the  mere  purpose  of  reinvestment  in  consols, 
unless  a  direction  to  that  effect  is  contained  in  the  instru- 
ment, or  is  deducible  by  implication  from  the  character  of 
the  trusts.  A  question  as  to  what  will  amount  to  such 
an  implied  direction  has  frequently  arisen  where  property 
of  a  less  safe  or  less  permanent  character  than  the  regular 
investment  of  the  Court,  and  therefore  yielding  a  larger 
immediate  income,  such  as  leasehold  estates,  or  foreign 
funds,  has  been  bequeathed  for  life  with  remainder  over. 
The  general  principle  is,  that  a  gift  of  the  kind  implies  a 
r*f;7-|  *conversion  into  three  per  cent,  consols,  unless 
there  be  something  in  the  language  of  the  wiU 
pointing  to  a  continuance  in  specie.  (^")^ 

A  trustee  is  bound  to  account  for  and  protect  the  pro- 
perty whilst  his  trust  continues.^    It  is  one  of  his  principal 

{k)  Howe  V.  Lord  Dartmouth,  7  Ves.  137  ;  Pickering  v.  Pickering,  4  M. 
&  C.  289 ;  Hinves  v.  Hinves,  3  Hare  609 ;  Pickup  v.  Atkinson,  4  Hare 
624 ;  Mills  V.  Mills,  7  Sim.  501  ;  1  Jarm.  on  Wills,  546. 

^  See  a  discussion  of  this  question  in  Hill  on  Trustees,  4th  Am,  ed.  597. 
and  American  notes,  and  particularly  Scholefield  v.  Redfern,  32  L.  J.  Ch. 
627.  In  this  country  the  rule  of  duty  for  a  trustee  in  investing  funds  for 
the  benefit  of  his  cestui  que  trust  is,  that  he  is  bound  to  observe  the  limits 
prescribed  by  the  terms  of  the  trust,  or  fairly  implied  from  its  nature 
and  objects  ;  and  in  selecting  an  investment  within  those  limits,  he  is 
bound  to  employ  such  diligence  and  such  prudence  in  the  care  and  man- 
agement of  the  fund,  as,  in  general,  prudent  men  of  discretion  and  intel- 
ligence employ  in  their  own  affairs.  This  necessarily  excludes  all  specu- 
lation, and  every  investment  for  an  uncertain  and  doubtful  use  in  the 
market.  For  it  does  not  follow,  that  because  prudent  men,  in  investing 
their  own  funds,  often  take  the  hazard  of  adventures  with  the  hope  of 
growing  rich ;  therefore  a  trustee  may  do  so :  per  Woodruff,  J.,  King  v. 
Talbot,  40  N.  Y.  76!  All  that  a  court  of  equity  requires  from  a  trustee  is 
common  skill,  common  prudence,  and  common  caution:  Neff's  Appeal.  57 
Penn.  St.  91. 

*  If  trustees  either  use  or  mix  trust  funds  with  their  own,  they  will  be 
liable  for  all  losses  which  may  arise  from  their  neglect  or  mismanagement: 
Case  V.  Abeel,  1   Paige  393;  Brackenridge  W.Holland,  2  Blackf.  377; 


ORDINARY     AND    CHARITABLE    TRUSTS.  155 

and  most  important  duties  that  he  should  keep  regular 
and  accurate  accounts,  clearly  distinguishing  the  trust 
property  from  his  own,  and  showing  all  his  receipts  and 
payments  in  respect  of  it;  and  that  he  should  be  always 
ready  to  produce  those  accounts  to  his  cestui  que  trust.  {I) 
It  is  also  a  most  important  duty  that  he  should  protect 
the  property  confided  to  him  whilst  the  trust  continues, 
and  should  for  that  purpose  retain  the  control  of  it  in  his 
own  hands.  And  it  has  been  doubted  whether  he  is  even 
warranted  in  devising  the  estate,  so  as  to  break  the  des- 
cent to  his  heir,  and  whether,  by  so  doing,  he  may  not 
render  his  executors  responsible  for  any  breach  of  trust 
by  the  devisee.  (?w)^ 

(Z)  Pearse  v.  Green,  1  J.  &  W.  135  ;  Freeman  v.  Fairlie,  3  Merir.  24,  42. 
(m)  1  Jarm.  on  Wills,  638  ;  2  Id.  Appendix. 

Myers  v.  Myers,  2  McC.  Ch.  265;  Utica  Ins.  Company  r.  Lynch,  11 
Paige  520 ;  Mumford  v.  Murray,  6  John.  Ch.  1 ;  Hart  v.  Ten  Eyck,  2  Id. 
513 ;  Marine  Bank  r.  Fulton  Bank,  2  Wal.  (S.  C.)  252;  Stanley's  App.,  8 
Penn.  St.  431 ;  .Jenkins  v.  Walter,  8  Gill  &  J.  218 ;  Pennell  r.  Deffell,  4 
De  G.,  M.  &  G.  372 ;  Frith  v.  Cartland,  34  L.  J.  Ch.  301  ;  Hill  on  Trustees 
575,  note. 

So  guardians  and  trustees  may  be  called  to  account  by  infants,  and  may 
be  required  to  bring  the  trust-moneys  into  court,  and  to  give  further  secu- 
rity to  account  when  the  infants  become  of  age  :  Monell  r.  Monell,  5  John. 
Ch.  297.  Though  if  a  trustee  or  an  executor  be  robbed  of  trust-money, 
it  is  a  good  answer  to  a  bill  for  an  account :  Furman  v.  Coe,  1  Cal.  Ca.  96. 

If  a  trustee  permit  a  debtor  to  retain  possession  of  a  trust  estate,  waste, 
and  use  it  as  his  own,  he  will  be  held  responsible  for  the  injury  to  the 
trust  fund  out  of  his  own  estate :  Harrison  v.  Mock,  10  Ala,  Rep.  185. 

It  has  been  settled  in  England,  after  some  fluctuation  in  authority,  that 
where  trustees  have  a  discretion  to  invest  either  in  stock  or  real  securities, 
and  neglect  to  make  any  proper  investment,  they  are  chargeable  only  with 
the  amount  of  the  principal  sum  and  interest,  and  not  with  the  value  of 
the  stock  they  might  have  bought.  See  Robinson  r.  Robinson,  1  De  G., 
M.  &  G.  256,  in  which  case  Watts '».  Girdlestone,  6  Beav.  188  (where  a 
contrary  doctrine  had  been  held)  was  overruled,  and  the  earlier  case  of 
Marsh  v.  Hunter,  6  Mad.  295,  approved. 

*  The  tendency  of  authority  in  England  seems  now,  however,  in  favor  of 


1?6  ADAMS's    DOCTRINE    OF    EQUITY. 

The  duty  of  retaining  the  control  in  his  own  hands  pre- 
cludes the  trustee,  not  only  from  assigning  the  property 
altogether  to  a  stranger,  but  even  from  conferring  on  such 
stranger  a  joint  authority  with  himself.^  It  is  true  that 
in  the  latter  case,  he  does  not  actually  part  with  the 
estate,  but  he  enables  a  third  party  to  interfere  with  his 
discretion,  and  6.efea,ts  pro  tanto  the  object  contemplated 
by  the  trust,  (w)^  A  trustee,  however,  is  not  necessarily 
precluded  from  acting  by  the  agency  of  others,  where 
such  a  mode  of  acting  is  according  to  the  ordinary  course 
of  business.  For  instance,  he  may  employ  a  steward  or 
agent ;  he  may  direct  moneys  to  be  paid  into  a  bank ;  he 
may  transmit  money  by  means  of  bills  drawn  on  respect- 
able parties,  and  so  forth ;  and  if  there  has  been  sufficient 
p^r n-i  *ground  for  his  so  doing,  and  he  take  care  to  keep 
the  fund  separate  from  his  own  property,  he  will 
not  be  answerable  for  incidental  loss.((?)^ 

(n)  Salway  v.  Salway,  4  Russ.  60  ;  2  R.  &  M.  215. 

(o)  Wren  v.  Kirton,  11  Ves.  377;  Massey  v.  Banner,  1  J.  &  W.  241 ; 
Clough  V.  Bond;  3  M.  &  C.  490 ;  Drake  v.  Kartyn,  1  Bea.  525 ;  Matthews 
V.  Brise,  6  Bea.  239. 

the  validity  of  such  a  devise :  see  Hill  on  Trustees,  4th  Am.  ed.  436,  note  ; 
Fonda  v.  Penfield,  56  Barb.  (N.  Y.)  503;  Schenck  v.  Schenck's  Ex'rs.,  1 
Green  (N.  J.)  174.  Special  statutory  provisions  in  some  of  the  United 
States,  obviate  the  necessity  of  this  discussion. 

^  A  trustee  who  has  only  delegated  discretionary  power  cannot  give  a 
general  authority  to  another  to  execute  such  power,  unless  he  is  specially 
authorized  to  do  so  by  the  deed  or  will  creating  the  trust ;  and  when  an 
estate  is  devised  with  power  to  sell,  a  general  authority  to  an  agent  to  sell 
and  convey  lands  belonging  to  the  estate,  or  to  contract  absolutely  for  the 
sale  of  such  lands,  cannot  be  legally  given  by  the  trustees :  Hawley  v. 
James,  5  Paige  323 ;  Berger  v.  DuflF,  4  John.  Ch.  368 ;  Black  v.  Erwin, 
Harper's  Law  411  ;  though  see  Sinclair  v.  Jackson,  8  Cowen  582.  In 
some  states  the  power  of  trustees  to  a(?t  by  attorney  has  been  enlarged  by 
statute;  such  is  the  case  in  Tennessee  and  Pennsylvania. 

2  Sugden  v.  Crossland,  3  Sm.  &  GifiF.  192. 

'  Sinclair  v.  Jackson,  8  Cowen  532 ;  Hawley  v.  James,  5  Paige  487. 


ORDINARY    AND    CHARITABLE    TRUSTS.  157 

The  same  principle  which  prohibits  a  trustee  from 
giving  up  the  control  of  the  trust  estate  to  a  stranger, 
also  prohibits  him  from  supinely  leaying  it  to  his  co-trus- 
tees. For  when  several  trustees  are  appointed,  the  pro- 
perty is  committed  to  the  charge  of  all,  and  the  cestui  que 
trust  is  entitled  to  the  vigilance  of  all.^ 

It  is  not  meant  that  in  every  act  done  under  the  trust 
every  trustee  must  actively  interfere,  for  such  a  course 
would  be  practically  impossible ;  and  it  is  therefore  the 
ordinary  doctrine  of  the  Court,  that  trustees  are  respon- 
sible for  their  own  acts  only,  and  not  for  those  of  each 
other.  If,  for  instance,  there  be  a  sum  of  money  paya- 
ble to  several  trustees,  it  is  sufficient  that  one  should 


^  Co-trustees  are  bound  to  know  the  receipts,  and  watch  over  the  con- 
duct of  each  other:  Ringgold  v.  Ringgold,  1  Har.  &  Gill.  11. 

In  matters  requiring  the  exercise  of  discretion  by  trustees,  and  not  in 
mere  ministerial  acts,  co-trustees  must  all  join,  and  cannot  act  separately 
in  discharge  of  their  trust :  Yandever  s  Appeal,  8  W.  &  S.  405. 

And  it  is  not  sufficient  to  exempt  one  of  the  two  joint  trustees  from 
liability,  that  the  duties  of  the  trust  have  been  exclusively  performed  by 
the  co-trustee,  with  the  concurrence  and  consent  of  the  former.  On  the 
contrary,  he  is  responsible  for  the  conduct  and  management  of  his  co-trus- 
tee, to  whom  he  has  thought  proper  to  delegate  his  power,  in  the  same 
manner  and  to  the  same  extent  as  if  they  had  been  executed  by  himself: 
Maccubbin  v.  Cromwell,  7  Gill  &  J.  157;  Spencer  v.  Spencer,  11  Paige 
299  ;  but  see  3  Ala.  83  ;  3  Sandf.  Ch.  99. 

So  when  by  the  act  of  one  trustee,  a  portion  of  the  trust  fund  gets  into 
the  hands  of  his  co-trustee,  they  are  both  responsible  therefor  :  Graham  v. 
Davidson,  2  Dev.  &  Bat.  Ch.  155.  But  a  trustee  is  not  liable  for  money 
received  by  his  co-trustee,  in  the  regular  disckarge  of  the  trust,  though  he 
join  in  a  receipt ;  but  where  he  joins  in  a  receipt  for  money  received  by 
his  co-trustee,  when  he  had  no  right  to  receive  it,  he  will  be  liable  :  Wallis 
V.  Thornton,  2  Brock.  422  ;  see  also  Monell  v.  Monell,  5  John.  Ch.  296. 

The  common  law  made  no  provision  for  the  execution  of  a  joint  trust  by 
one  of  the  trustees,  where  the  co-trustee,  by  reason  of  lunacy  or  other 
inability,  becomes  incompetent  to  execute  the  trust :  In  the  matter  of 
Wadsworth,  2  Barb.  Ch.  381.  But  by  special  statute,  the  court  may 
remove  the  incompetent  trustee,  as  in  the  state  of  New  York :  Ibid. 


158  ADAMS's    DOCTRINE    OF    EQUITY. 

actually  receive  it ;  and,  unless  it  be  afterwards  impro- 
perly left  in  his  hands,  the  co-trustees  will  not  be  re- 
sponsible. Nor  will  their  position  in  this  respect  be 
altered  by  their  being  parties  to  a  joint  receipt  for  the 
sake  of  conformity,  unless  the  money  be  improperly 
raised,  or  there  be  some  other  independent  act  of  miscon- 
duct ;  because,  as  no  single  trustee  has  any  separate 
authority,  the  receipt  would  not  be  valid  Avithout  the  sig- 
nature of  all.  It  is  otherwise  in  regard  to  executors;^ 
for  the  receipt  of  one  is  a  valid  discharge;  and,  therefore, 
if  all  join,  it  is  treated,  in  the  absence  of  special  circum- 
stances, as  an  admission  that  the  money  was  under  the 
control  of  all.(jt?)^ 

[p]  Brice  v.  Stokes,  11  Ves.  319 ;  Walker  v.  Symonds,  3  Sw.  1,  64 ;  Joy 
V.  Campbell,  1  Sch,  &  L.  328,  341  ;  Gregory  v.  Gregory,  2  Y.  &  C.  Exch. 
313. 

^  In  some  cases,  in  the  United  States,  it  has  been  held,  that  this  distinc- 
tion as  to  executors  had  been  now  broken  down  :  Stell's  App.,  10  Penn.  St. 
152  ;  Ochiltree  v.  Wright,  1  Dev.  &  Batt.  Eq.  336. 

^  The  liability  of  joint  trustees  for  each  other's  acts  has  not  always  been 
enforced  with  as  great  strictness  in  the  United  States  as  in  England.  The 
rule  has  been  most  frequently  stated  to  be  that  each  is  responsible  only  for 
his  own  acts,  and  not  for  the  acts  of  the  others,  unless  he  has  made  some 
agreement  by  which  he  has  expressly  agreed  to  be  bound  for  the  other,  or 
has  by  his  voluntary  connivance,  enabled  one  or  more  to  accomplish  some 
known  object  in  violation  of  the  trust.  A  joinder  in  receipts,  though  primd 
facie,  is  not,  as  in  the  case  of  executors,  conclusive  evidence  of  an  interest 
to  be  jointly  bound,  but  may  be  explained.  Wherever  it  is  necessary  and 
convenient  for  the  purpose  of  the  trust,  that  a  part  or  all  of  the  business 
should  be  intrusted  to  one  op  more  of  the  co-trustees,  the  others  not  cog- 
nisant of,  or  concurring  in  any  way  in  a  misapplication  of  the  funds,  will 
not  be  liable  therefor ;  though  see  Maccubbin  v.  Cromwell,  7  G.  &  John. 
168.  If,  however,  the  acting  trustee  is  known  to  be  unfit  for  the  manage- 
ment of  the  trust,  or  is  suffering  under  pecuniary  embarrassment,  the  co- 
trustees will  be  responsible,  if  they  permit  money  to  be  received  by  him  or 
to  remain  in  his  hands.  And,  if  a  trustee  who  has  actually  received  money 
or  securities,  pays  or  assigns  them  to  his  colleagues  without  necessity,  he 
will  become  liable  for  their  misconduct.     With  regard  to  the  effect  of  a 


ORDINARY    AND    CHARITABLE    TRUSTS.  159 

The  cases,  however,  in  which  joint  trustees  may 
permit  some  of  their  body  to  act  in  the  management 
without  themselves  incurring  personal  liability,  are  very 
different  from  those  where  a  trustee  so  conducts  himself 
as  to  throw  the  whole  *trust  fund  jntothe  hands  of  r^^-q-i 
his  colleagues,  and  to  abandon  the  interests  which 
it  is  his  duty  to  protect.  Any  conduct  of  this  latter 
kind  is  a  dereliction  from  duty,  and  will  make  him  re- 
sj)onsible  for  consequent  loss.  If,  for  instance,  he  volun- 
tarily aid  his  co-trustees  to  commit  a  breach  of  trust;  if 
he  neglect  to  prevent  or  remedy  such  breach  of  trust, 
when  it  comes  to  his  knowledge ;  if  he  give  facilities  for 
it,  as  by  suffering  his  co-trustee  to  detain  the  trust-money 
for  a  long  period,  without  security  ;  or  even  if  he  unne- 
cessarily incur  the  risk  of  it  by  parting  with  that  control, 
which  has  been  intrusted  to  him ;  as  by  a  mutual  agree- 
ment between  himself  and  his  co-trustee,  that  one  shall 
have  the  exclusive  management  of  one  part  of  the  pro- 
perty, and  the  other  of  the  other  part,  he  will  be  charge- 
able for  the  result  of  his  misconduct  or  negligence,  to  the 
full  extent  of  any  mischief  incurred.  (§') 

(g)  Booth  V.  Booth,  1  Bea.  125  ;  Broadhurst  r.  Balguy,  1  N.  C.  C.  16. 

joinder  in  sales,  which  is  of  course  a  necessary  act,  the  authorities  are  not 
agreed,  though  it  has  been  held  in  most  cases,  that  the  trustees  are  jointly 
responsible  for  the  collection  and  investment  of  the  purchase-money. 
Where,  indeed,  there  is  an  express  direction  that  the  trust-fund,  or  the 
proceeds  of  a  sale,  shall  be  invested  in  a  particular  manner,  all  are  bound 
to  see  such  investment  made.  In  any  case,  however,  where  a  proper  invest- 
ment has  been  once  made,  the  liability  of  the  non-acting  trustees  ceases. 
It  is  to  be  remembered,  also,  that  the  innocent  trustees  are  not  to  be  made 
ultimately  responsible  for  the  misfeasance  or  nonfeasance  of  the  others,  un- 
less the  latter,  by  reason  of  insolvency  or  the  like,  cannot  be  reached.  The 
American  authorities  which  justify  these  conclusions  will  be  found  in  the 
note  to  Townley  v.  Sherborne,  2  Lead.  Cas.  Eq.  718  ;  Irwin's  Appeal,  35 
Penn.  St.  294 ;  Hill  on  Trustees,  2d  Am.  ed.  470;  Story's  Eq.,  sec.  1280, 
&c.  See  Chandler  v.  Fillett,  25  L.  J.  Ch.  505 ;  Cottam  v.  Eastern  Counties 
Railroad  Co.,  1  Johns.  &  11.  243 ;  Mendes  v.  Guedalla,  2  John.  &  H.  259. 


IGO  ADAMS's    DOCTRINE    OF    EQUITY. 

If  in  any  case  there  is  a  bond  fide  doubt  as  to  the  course 
which,  under  the  circumstances,  a  trustee  should  pursue, 
he  may  obtain  directions  by  a  suit  in  equity  at  the  cost 
of  the  estate.  And  a  cautious  trustee  will  generally  do 
so,  whenever  a  reasonable  doubt  exists. 

When  the  trust  is  at  an  end,  the  trustee  is  bound  to 
restore  the  estate  to  the  parties  entitled,  and  for  that 
purpose  to  make  such  conveyance  as  they  may  require, 
receiving  from  them  a  release  of  his  trust,  (r)^ 

Lastly,  a  trustee  must  not  avail  himself  of  his  fiduciary 
character  for  any  object  of  personal  benefit.  His  funda- 
mental duty  is  to  do  his  utmost  for  the  cestui  que  trust; 
and  every  advantage  which  he  appropriates  to  himself, 
must  be  acquired  by  a  dereliction  from  that  duty.  If, 
therefore,  a  trustee  or  executor  buy  in  charges  on  the 
estate  for  less  than  their  actual  amount,  the  purchase  will 
inure  for  the  benefit  of  the  trust  ;(s)^  if  a  trustee  or  exe- 
r*A01  ^^^^^7  *holding  renewable  leaseholds,  renew  in  his 
own  name,  he  cannot  hold  for  himself,  even  though 
a  renewal  on  the  former  trusts  may  have  been  refused  by 
the  lessor;  (^)  and  the  same  result  will  follow  on  a  renewal 
by  a  mortgagee  or  partner,  or  by  a  tenant  for  life ;  for 

(r)  Goodson  v.  Ellison,  3  Kuss.-  583 ;  Holford  v.  Phipps,  3  Bea.  434 ; 
Whitmarsh  v.  Robertson,  1  Y.  &  C.  715  ;  Hampshire  v.  Bradley,  2  Coll.  34. 

(«)  fix  i)arte  Lacey,  6  Yes.  625 ;  Hamilton  v.  Wright,  9  CI.  &  F.  Ill  ; 
Ex  parte  James,  8  Yes.  337,  345. 

(t)  Rumford  Market  Case,  Sel.  Ch.  Ca.  61 ;  James  r.  Dean,  11  Yes.  383  : 
Randall  v.  Russell,  3  Meriv.  190. 

'  The  trustee,  however,  has  no  right  to  insist  on  such  a  release,  where  a 
conveyance  is  in  accordance  with  the  trust ;  it  is  only  where  he  is  called 
upon  to  depart  from  the  tenor  of  the  trust  that  he  can  do  so :  King  v.  Mul- 
lin,  1  Drewry  300 ;  Hill  on  Trustees,  4th  Am.  ed.  897. 

''  Greenxi;.  Winter,  1  John.  Ch.  26  ;  Yan  Home  v.  Fonda,  5  Id.  409  ;  But- 
ler V.  Hicks,  11  Sm.  &  Marsh.  78  ;  Mathews  v.  Dradaud,  3  Dessaus.  25; 
Irwin  V.  Harris,  6  Ired.  Eq.  221. 


ORDINARY    AND    CHARITABLE    TRUSTS.  161 

although  he  may  not  be  bound  to  renew,  yet  if  he  does 
renew  behind  the  back  of  the  other  parties  interested,  he 
cannot  by  converting  the  new  acquisition  to  his  own  use, 
derive  an  unconscientious  benefit  out  of  the  estate  on 
which  it  is  a  graft,  {u)  In  like  manner  it  is  a  breach  of 
trust  if  a  trustee  employ  the  trust  fund  in  carrying  on  a 
trade,  or  if  he  deposit  it  at  his  bankers,  mixed  up  with 
his  own  moneys,  so  as  to  obtain  the  credit  of  an  addi- 
tional balance,  (e;)^ 

The  most  obvious  instance  of  the  abuse  of  a  fiduciary 
character  is,  where  a  trustee  for  sale  or  purchase,  attempts 
to  buy  from  or  sell  to  himself.  The  permitting  such  a 
transaction  to  stand,  however  honest  it  might  be  in  the 
particular  case,  would  destroy  all  security  for  the  conduct 
of  the  trustee ;  for  if  he  were  permitted  to  buy  or  sell  in 
an  honest  case,  he  might  do  so  in  one  having  that  appear- 
ance, but  which  from  the  infirmity  of  human  testimony, 
might  be  grossly  otherwise.  It  is  not  therefore  necessary 
to  show  that  the  trustee  has  in  fact  made  an  improper 
advantage ;  but  the  cestui  que  trust,  if  he  has  not  confirmed 
the  transaction  with  full  knowledge  of  the  facts,  may  at 
his  option  set  it  aside.  The  rule,  however,  which  imposes 
this  absolute  incapacity,  applies  to  those  cases  only  where 
a  trustee  attempts  to  purchase  from  or  sell  to  himself. 
There  is  no  positive  rule  that  he  cannot  deal  with*  his 
cestui  que  trust.     But  in  order  to  do  so,  he  must  fully 

(m)  Stone  V.  Theed,  2  B.  C.  C.  243  ;  Waters  v.  Bailey,  2  N.  C.  C.  219; 
Featherstonehaugh  v.  Fenwick,  17  Ves.  298. 

(r)  Heathcote  v.  Hulme,  1  J.  &  W.  122  ;  Moons  v.  De  Bernales,  1  Russ. 
301  ;  Melland  v.  Gray,  2  Coll.  295  ;  [Royer's  App.,  11  Penn.  St.  36  ;  Stan- 
ley's App.,  8  Id.  431 ;  Jenkins  v.  Walter,  8  Gill  &  J.  218.] 

1  See  Pennell  v.  Deffell,  4  De  G.,  M.  &  G.  372 ;  Frith  v.  Cartland,  34  L. 
J.  Ch.  301 ;  Commonwealth  v.  McAlister,  28  Penn.  St.  480  ;  School  v.  Kir- 
win,  25  111.  73 ;  Kip  V.  The  Bank  of  New  York,  10  John.  65, 
11 


162  ADAMS'S    DOCTRINE    OF    EQUITY. 

divest  himself  of  all  advantage  which  his  character  as 
r^e-T-i    trustee  might  confer,  and  *must  prove,  if  the  trans- 
actions be  afterwards  impugned,  that  it  was  in  all 
respects  fair  and  honest.  («c)^ 

(w)  Ex  parte  Lacy,  6  Ves.  625 ;  Coles  v.  Trecothick,  9  Ves.  234,  237 ; 
Ex  parte  Bennett,  10  Ves.  381 ;  Downes  v.  Grazebrook,  3  Meriv.  200,  208  ; 
2  Sug.  V.  &  P.  10th  edi  c.  xix,  s.  2. 

1  Michoud  w.Girod,  4  How.  U.  S.  503  ;  Drysdale's  Appeal,  14  Penn.  St. 
531 ;  Winter  v.  Geroe,  1  Hurlst.  Ch.  319  ;  Hudson  v.  Hudson,  5  Munf. 
180 ;  Edmonds  v.  Crenshaw,  1  McCord's  Ch.  252 ;  Baines  v.  McGee,  1  Sm. 
&  M.  208  ;  Baxter  v.  Costin,  1  Busbce's  Eq.  (N.  C.)  262  ;  De  Caters  ».  Le 
Ray  de  Chaumont,  3  Paige  Ch.  178 ;  Child  v.  Brace,  4  Id.  309 ; 
Campbell  v.  Johnston  et  al.,  1  Sandf.  Ch.  148  ;  Boyd  v.  Hawkins,  2  Ired. 
Ch.  304 ;  Mathews  v.  Dragaud,  3  Dessaus.  25  ;  1  Gilm.  614 :  Davis  ».  Simp- 
son, 5  Har.  &  J.  147  ;  Richardson  v.  Jones,  3  Gill  &  J.  163  ;  In  the  matter  . 
of  the  petition  of  Oakley  et  al.,  2  Edw.  Ch.  478 ;  Hawley  v.  Mancius,  7 
John.  Ch.  174  ;  Haddix's  Heirs  v.  Iladdix's  Adm'rs.,  5  Lit.  202  ;  Dorsey  v. 
Dorsey,  3  Har.  &  J.  410  ;  Breckenridge  v.  Holland,  2  Blackf.  377  ;  Case  v. 
Abeel,  1  Paige  393 ;  Davoue  v.  Fanning,  2  John.  Ch.  252 ;  Churchill's 
Heirs  v.  Akin's  Adm'rs.,  5  Dana  481 ;  Torrey  v.  Bank  of  Orleans,  9  Paige 
650;  Remick  v.  Butterfield,  11  Foster  70;  Lenox  r.  Lotrebe,  1  Ilempst,  25; 
Lefevre  v.  Laraway,  22  Barb.  167 ;  Blauvelt  v.  Ackerman,  20  N.  J.  Eq.  141 ; 
Washington,  &c.,  Railroad  Co.  v.  Alexander  Railroad  Co.,  19  Gratt  (Va.) 
592 ;  Renew  v.  Butler,  30  Ga.  954  ;  Sypher  v.  McHenry,  18  Iowa  232.  A 
trustee  incompetent  to  purchase  on  his  own  account,  cannot  purchase  as 
agent  for  a  third  person:  Hawley  v.  Cramer,  4  Cow.  717;  North  Balti- 
more, &c..  Association  v.  Caldwell,  25  Md.  420.  Nor  can  a  third  person 
purchase  in  trust  or  as  the  agent  for  the  trustee  :  Hunt  v.  Bass,  2  Dev. 
Ch.  292;  Michoud  V.  Girod,  ut  supr. ;  Paul  v.  Squib,  12  Penn.  St.  296; 
Buckles  V.  Lafferty,  2  Rob.  (Va.)  292 ;  Lewis  v.  Hillman,  3  H.  Lords 
Cases  629.  But  in  Beeson  v.  Beeson,  9  Penn  St.  280,  it  was  held  that  a 
purchase  by  a  trustee  through  a  secret  agent  was  not  absolutely  void, 
unless  there  were  actual  fraud.  And  if  the  trustee  purchase  a  mortgage 
or  judgment,  which  is  a  lien  on  the  trust  estate,  at  a  discount,  he  will  not 
be  allowed  to  turn  the  purchase  to  his  own  advantage  :  Green  v.  Winter, 
1  John.  Ch.  27 ;  see  also,  Boyd  v.  Hawkins,  2  Dev.  Ch.  195 ;  Van  Home 
V.  Fonda,  5  John.  Ch.  409.  And  it  seems  a  trustee  may  not  purchase 
the  trust  property  for  his  own  benefit,  when  it  is  sold  under  a  judicial 
decree,  which  he  was  not  instrumental  in  procuring,  unless  by  the  order 
of  sale  he  was  specially  allowed  so  to  purchase :  Chapin  v.  Weed,  1 
Clarke  464 ;  Beeson  v.  Beeson,    9  Penn.  St.   279 ;   Wallingtons   Est.,    1 


ORDINARY    AND    CHARITABLE    TRUSTS.  163 

The  restraint  on  any  personal  benefit  to  the  trustee  is 
not  confined  to  his  dealings  with  the  estate,  but  extends 

Ashm.  307  ;  Ricketts  v.  Montgomery,  15  Md.  46 ;  Jamison  v.  Glascock, 
29  Missouri  191  ;  Bank  v.  Dubuque,  8  Clarke  (la.)  277;  Obert  v.  Obert, 
1  Beas.  423  ;  Elliott  v.  Pool,  3  Jones  Eq.  17  ;  Hoitt  v.  Webb,  36  N.  Hamp. 
158  5  Chandler  v.  Moulton,  33  Verm.  245  5  Parker  v.  Vose,  45  Maine 
54 ;  Freeman  v.  Harwood,  49  Id.  195 ;  Martin  v.  Wyncoop,  12  Ind. 
266.  But  see,  contra,  Fisk  v.  Sarber,  6  W.  &  S.  18 ;  Chorpenninga 
Appeal,  32  Penn.  St.  315 ;  Elrod  r.  Lancaster,  2  Head  571 ;  Mercer  r. 
Newcum,  23  Georgia  151 ;  Huger  v.  Huger,  9  Rich.  Eq.  217  ;  Earl  v.  Hal- 
sey,  1  McCart.  332.  A  trustee  permitted  to  bid  at  his  own  sale,  must  act 
within  the  strictest  line  of  his  responsibility:  Cadwalader's  Appeal,  64 
Penn.  St.  293. 

But  a  mortgagee  of  personalty  does  not  fall  -within  the  principle  which 
prevents  a  trustee  to  sell,  from  buying  at  his  own  sale  :  Black  v.  Hair  et 
al.,  2  Hill  Ch.  623.  So  of  a  mortgagee  generally :  Iddings  ».  Bruen,  4 
Sand.  Ch.  223 ;  Knight  v.  Marjoribanks,  2  Macn.  &  Gord.  10 ;  Murdock's 
Case,  2  Bland  461 ;  unless  with  a  power  of  sale :  Waters  v.  Groom,  11  CI. 

6  Fin.  684;  Mapps  v.  Sharpe,  32  Illinois  13;  or  he  buys  in  without  a 
power  and  without  a  foreclosure :  Gunn  v.  Brantley,  21  Alab.  633.  But 
a  second  mortgagee  may  purchase  under  a  power  of  sale  exercised  by  the 
first  mortgagee :  Shaw  v.  Bunny,  34  L.  J.  Ch.  257 ;  11  Jur.  N.  S.  99,  and 
see  Britton  v.  Lewis,  8  Rich.  Eq.  271.  And  where  bona  fide  creditor  after- 
wards becomes  a  trustee,  he  may  buy  in  a  judgment  against  a  cestui  que 
trust,  and  may  pursue  all  legal  remedies  to  enforce  payment  of  it ;  nor  has 
the  cestui  que  trust  any  right  to  inquire  how  much  the  former  paid  for  it : 
Prevost  r.  Gratz,  Peters  Ch.  364  ;  but  see  Irwin  v.  Harris,  6  Ired.  Eq.  221. 
If  a  trustee  for  creditors  sues  out  a  mortgage  belonging  to  the  trust,  and 
purchases  the  real  estate  at  such  sale  in  his  own  name  it  is  as  trustee  for 
the  creditors :  Campbell  v.  McLain,  51  Penn.  St.  200. 

A  purchase  by  the  trustee,  when  perfectly  fair,  made  from  the  cestui  que 
trust,  or  with  his  assent,  under  a  full  knowledge  of  the  circumstances,  or 
when  subsequently  confirmed  by  him  directly  or  by  long  acquiescence, 
with  such  knowledge,  will  not  be  set  aside  by  a  court  of  eq*ity  :  Pennock's 
App.,  14  Penn.  St.  446  ;  Bruch  v.  Lantz,  2  Rawle  392 ;  Harrington  v. 
Brown,  5  Pick.  519  ;  Dunlap  v.  Mitchell,  10  Ohio  117;  Scott  v.  Freeman, 

7  Sra.  &  M.  410  ;  Jenison  v.  Hopgood,  7  Pick.  1  ;  Musselmen  r.  Eshelman, 
10  Penn.  St.  374 ;  Hawley  v.  Cramer,  4  Cowen  719 ;  Todd  v.  Moore,  1 
Leigh  457:  Villines  r.  Norflett,  2  Dev.  Ch.  167 ;  Roberts  v.  Roberts,  63  N. 
C.  27  ;  Boerum  v.  Schenck,  41  N.  Y.  182  ;  Cofi'ee  v.  Ruffin,  4  Cold.  (Tenn.) 
487;  Carter  r.  Thompson,  41  Ala.  375;  Buell  v.  Buckingham,  16  Iowa 
284.     It  has  been  held,  however,  that  a  court  of  equity  will  never  aid  a 


164  ADAMS's    DOCTRINE    OF    EQUITY. 

even  to  remuneration  for  his  services,  and  prevents  him 
from  receiving  anything  beyond  reimbursement  of  his 
expenses,  unless  there  be  an  express  contrary  stipula- 
tion.^ So  far  as  such  reimbursement  extends,  he  is 
entitled  to  claim  it  in  the  fullest  extent.  All  payments 
made  and  liabilities  incurred  by  him,  and  all  his  reason- 
able costs,  as  between  solicitor  and  client,  of  any  suit 
relating  to  the  trust,  are  to  be  paid  out  of  the  estate,  or 
if  that  should  prove  deficient,  by  the  cestui  que  trust 
personally.^     But  if  the  trustee  is  himself  a  solicitor,  he 

trustee,  under  any  circumstances,  to  enforce  such  a  purchase,  though  it 
might  refuse  to  annul  it :  Monro  v.  Allaire,  2  Caines'  Cas.  183.  This 
distinction  is  unquestionably  a  valid  one  in  general ;  yet  it  may  be 
doubted  of  the  modern  authorities.  See  Hill  on  Trustees,  4th  Am.  ed.  249, 
837  ;  Salmon  v.  Cutts,  4  De  G.  &  S.  131. 

See,  as  to  the  power  of  a  trustee  to  purchase  the  trust  fund,  if  the  bene, 
ficiary  agree  to  the  purchase  :  Field  v.  Arrowsmith,  3  Humph.  (Tenn.) 
442 ;  and  also,  Coles  v.  Trecothick,  9  Ves.  244 ;  Lacy,  Ex  parte,  6  Id.  626  ; 
Henricks  v.  Robinson,  2  John.  Ch.  311.  A  sale  by  a  trustee  to  his  cestui 
que  trust,  stands  on  the  same  footing  as  a  purchase  by  a  trustee  for  hia 
cestui  que  trust,  and  is  void,  especially  if  the  trustee  has  taken  any  advan- 
tage of  the  cestui  que  trust :  McCants  v.  Bee,  1  McCord  Ch.  383. 

'  The  rule  under  consideration  applies  only  to  transactions  inter  vivos,  for 
gifts  by  vfill  always  implies  bounty,  and  a  trustee  may  receive  a  benefit 
under  the  will  of  his  cestui  que  trust :  Hindson  v.  Weatherill,  5  De  G.,  M. 
&  G.  361 ;  Stump  V.  Gaby,  2  Id.  623  ;  though  see  Waters  v.  Thorn,  22  Beav. 
547. 

*  Expenses  incurred  unnecessarily  and  against  the  remonstrance  of  the 
cestui  que  trust  will  not  be  allowed  :  Berryhill's  Appeal,  35  Penn.  St.  245. 
Trustees  are  entitled  to  expense  incurred  in  taking  the  opinion  of  counsel 
as  to  the  trust  estate:  Fearns  v.  Young,  10  Yesey  184;  McElhenny's  Ap- 
peal, 46  Penn.  St.  347.  A  trustee  is  liable  for  the  fraud  of  his  solicitor, 
although  he  may  have  used  ordinary  discretion  in  employing  him  :  Bos- 
tock  V.  Floyer,  L.  R.  1  Eq.  26  ;  Sutton  v.  Wilder,  L.  R.  12  Eq.  373  ;  and 
also  for  his  negligence :  Hopgood  v.  Parkin,  L.  R.  11  Eq.  74. 

Whether  the  trustee,  however,  can  claim  compensation  or  not,  he  is  en- 
titled to  be  fully  reimbursed  for  all  expenses  incurred  and  responsibilities 
assumed  in  the  management  of  the  trust :  Towle  v.  Mack,  2  Verm.  19 ; 
Green  v.  Winter,  1  John.  Ch.  27  ;  Burr  ».  McEwen,  1  Bald.  154 ;  Pennell's 


ORDINARY    AND    CHARITABLE    TRUSTS.  165 

cannot  of  course  charge  the  trust  for  his  own  profes- 
sional services,  so  as  to  derive  in  that  form  a  personal 
benefit.  (:r)^ 

If  a  trustee  fail  in  performance  of  his  trusts,  whether 
by  exceeding  or  falling  short  of  its  proper  limits,  the 
cestui  que  trust  is  entitled  to  a  remedy  in  equity. 

We  have  already  seen  that,  if  there  be  no  trustee,  or  if 
the  trustee  is  desirous  to  be  discharged  from  his  trust,  the 
Court  of  Chancery  will  undertake  the  office.  If  there  be 
an  existing  and  acting  trustee,  who  either  refuses  to  per- 
form a  particular  duty,  or  threatens  to  do  an  unauthorized 

(x)  Moore  v.  Frowd,  3  M.  &  C.  45 ;  Bainbridge  v.  Blair,  8  Bea.  588. 
Though  see  Cradock  v.  Piper,  1  Maen.  &  Gord,  668.  [Cradock  v.  Piper, 
was  disapproved  in  Broughton  v.  Broughton,  5  De  G.,  M.  &  G.  160.  See 
also,  Lyon  v.  Baker,  5  De  G.  &  Sm.  622 ;  Mayer  v.  GuUuchat,  6  Rich.  Eq. 
1 ;  Clack  V.  Carlon,  7  Jur.  N.  S.  441  and  Id.  part  2,  p.  211]. 

App.,  2  Penn.  St.  216  5  Morton  v.  Adams,  1  Strobh.  Eq.  76 ;  Hatton  ». 
Weems,  12  G.  &  John.  83  ;  Morton  v,  Barrett,  22  Maine  257.  And  this  is 
the  case,  even  though  the  trust  may  have  been  afterwards  declared  void, 
provided  he  acted  in  good  faith  :  Hawley  v.  James,  16  Wend.  61 ;  Stewart 
V.  McMinn,  5  W.  &  S.  1()0. 

^  The  rule  stated  in  the  text  was  adopted  in  some  of  the  earlier  cases  in 
this  country  :  see  Green  v.  Winter,  1  John.  Ch.  37,  38  ;  Manning  v.  Man- 
ning, Id.  532 ;  Mumford  v.  Murray,  6  Id.  17 ;  State  Bank  v.  Marsh,  Sax- 
ton  288  ;  Egbert  v.  Brooks,  3  Harring.  110 ;  Miles  v.  Bacon,  4  J.  J.  Marsh. 
457 ;  Kendall  v.  The  New  Eng.  Carpet  Co.,  13  Conn.  384 ;  though  com- 
missions might  be  agreed  upon  at  the  creation  of  the  trust:  Boyd  v.  Haw- 
kins, 2  Dev.  Ch.  212. 

But  now,  however,  in  most  of  the  United  States,  trustees  are  allowed 
compensation,  either  by  express  statutes  or  by  analogy  to  compensation 
allowed  to  executors.  Upon  the  subject  of  compensation  to  trustees,  see 
Meacham  v.  Sternes,  9  Paige  Ch.  398 ;  Ringgold  v.  Ringgold,  1  liar.  & 
Gill.  11 ;  Boyd  v.  Hawkins,  2  Dev.  Ch.  329  ;  Miller  v.  Beverleys,  4  Hen.  & 
M.  415;  Jenkins  v.  Eldredge,  3  Story  325;  Matter  of  De  Peyster,  4  Sandf. 
Ch.  511;  Burr  v.  McEwen,  1  Bald.  163  ;  Nathans  v.  Morris,  4  Wh.  389  ; 
Stehman's  Appeal,  5  Penn.  St.  413.  The  cases  and  statutes  on  this  subject, 
will  be  found  fully  collected  in  the  American  note  to  Robinson  v.  Pett,  2 
Lead.  Cas.  Eq.  200. 


166  ADAMS's    DOCTRINE    OF    EQUITY. 

act,  he  may  be  compelled  to  act  in  the  one  case,  or  re- 
strained in  the  other ;  ( y)  or,  if  necessary,  he  may  be 
removed  altogether  from  the  trust,  and  another  appointed 
in  his  room,  {z)  ^ 

If  a  breach  of  trust  has  been  committed,  the  trustee 
P-=fi21  ^^"^  ^^  liable  to  make  good  any  consequent  loss, 
whether  immediately  resulting  from  it,  or  trace- 
able as  its  effect.  And  if  several  trustees  have  concurred 
in  its  commission,  each  of  them  will,  in  favor  of  the  cedui 
que  trust,  be  severally  liable  for  the  whole  loss.  But  if 
no  actual  fraud  has  been  committed,  a  contribution  may 
be  enforced  as  between  themselves.  And  if  any  third 
party  has  knowingly  reaped  the  benefit  of  the  breach  of 
trust,  the  loss  may  be  eventually  cast  on  him.^  If  the 
cestuis  que  trustent  themselves,  being  sui  Juris,  have  con- 
sented to  the  act,  they  cannot  afterwards  be  heard  to 
complain  of  it;'  and  if  some  only  out  of  several  have  so 
consented,  the  trustees  and  the  other  cestuis  que  trustent 
must  be  indemnified  out  of  their  interest ;  nor  can  the 
trustee  waive  the  right  to  such  indemnity,  because  it  is  a 
security,  not  to  himself  alone,  but  to  the  other  cestuis  que 
trustent,  also  to  be  worked  out  through  him.  (a)  If,  after 
the  commission  of  a  breach  of  trust,  the  trustee  has  given 
full  and  complete  information  to  the  cestuis  que  trustent, 
and  they  have  acquiesced  in  the  existing  state  of  things, 

{y)  Kirby  v.  Marsh,  3  Y.  &  C.  295  ;  Att.-Gen.  v.  Mayor  of  Liverpool,  1 
M.  &  C.  171,  210. 

{z)  Att.-Gea.  v.  Shore,  9  CI.  &  F.  355  ;  Att.-Gen.  v.  Caius  College,  2 
Keen  150. 

(a)  Walker  v.  Symonds,  3  Sw.  1,  75;  Wilson  v.  Moore,  1  M.  &  K.  127; 
Greenwood  v.  Wakeford,  1  Bea.  576;  Fyler  r.  Fyler,  3  Id.  550;  Woodyatt 
V.  Gresley,  8  Sim.  180 ;  Fuller  v.  Knight,  6  Bea.  205. 

^  See  note  to  page  38,  ante. 

»  Trull  ».  Trull,  13  Allen  (Mass.)  407. 

»  Campbell  v.  Miller,  38  Geo.  304. 


ORDINARY    AND    CHARITABLE    TRUSTS.  167 

and  have  dealt  with  the  trustee  on  the  footing  of  that 
acquiescence,  the  breach  of  trust  will  be  considered  as 
waived,  (i)  But  unless  there  be  acquiescence  in  the  ce»- 
tuis  que  trustent,  the  mere  lapse  of  time  will  not  bar  the 
liability  of  an  express  trustee;  for  his  possession  is  accord- 
ing to  his  title.^  It  is  otherwise  with  regard  to  persons 
who,  not  being  themselves  express  trustees,  have  acquired 
property  with  notice  of  a  trust,  or  have  otherwise  become 
trustees  by  construction  of  equity ;  for  such  persons, 
though  bound  in  equity  to  perform  the  trust,  are  not  in 
strictness  existing  trustees,  but  are  to  be  constituted  trus- 
tees by  a  decree.  Their  possession,  therefore,  in  the 
meantime  is  *adverse  to  the  cestui  que  trust,  and  r-^co-i 
if  left  undisturbed,  will  ultimately  exclude  him.  (c) 

The  extent  of  the  remedy  which  equity  aifords,  de- 
pends on  the  character  of  the  wrong  done.  There  does 
not  appear  to  be  any  case  where  the  Court  has  awarded 
damages  for  mere  injury  to  the  estate ;  but  the  trustee 
must  account  for  what  he  has  or  ought  to  have  received, 
with  interest  at  four  per  cent,  on  moneys  improperly  re- 
tained, (c?)^ 

(fe)  Brice  v.  Stokes,  11  Ves.  319;  Walker  r.  Symonds,  3  Sw.  1,  64,  67 ; 
Roberts  c.  Tunstall,  4  Hare  257.  [See  Hill  on  Trustees,  4th  Am.  ed.  pp. 
267  and  460,  et  seq.,  where  the  American  cases  are  collected.] 

(c)  Beckford  v.  Wade,  17  Ves.  99 ;  Hovenden  r.  Annesley,  2  Sch.  &  L. 
633 ;  Wedderburn  v.  Wedderbum,  2  K.  722 ;  s.  c.  4  M.  &  C.  41  ;  3  &  4 
Wm.  4,  c.  27,  8.  25. 

{d)  Ludlow  r.  Greenhouse,  1  Bligh,  N.  S.  17,  57;  Rocke  ».  Hart,  11 
Ves.  58 :  Tebbs  r.  Carpenter,  1  Madd.  290. 

^  If,  however,  there  is  negligence  on  the  part  of  the  cestui  que  trust  in 
asserting  his  rights,  a  court  of  equity  will  not,  after  a  long  lapse  of  time, 
render  the  trustee  liable :  Bright  v.  Legerton,  2  De  G.,  F.  &  J.  606.  But 
the  breach  of  trust  must  be  distinctly  brought  to  the  notice  of  the  cestui 
que  trust ;  it  is  only  from  the  time  of  such  notice  that  the  satutte  begins 
to  run  in  favor  of  the  trustee :  Hunter  r.  Hubbard,  26  Texas  537 ;  see 
also,  New  Market  v.  Smart,  45  X.  H.  87. 

*  See  notes  to  pages  56,  57,  ante. 


168  ADAMS'S    DOCTRINE    OF    EQUITY. 

The  giving  of  interest,  however,  is  merely  an  imperfect 
method  of  estimating  the  indemnity  Avhich  the  cestui  que 
trust  may  claim,  and  does  not  preclude  the  adoption  of  a 
more  accurate  rule.  If,  therefore,  the  property  is  at  the 
time  of  the  trustee's  misapplication  actually  invested  in 
stock,  and  is  improperly  sold  out  by  him,  or  if  the  trust 
deed  contains  a  direction  so  to  invest  it,  the  amount  of 
such  stock  will  be  the  measure  of  the  indemnity ;  and  the 
trustee  may,  at  the  option  of  the  cestui  que  trust,  be  com- 
pelled either  to  repay  the  money  with  interest,  or  to  make 
good  the  amount  of  stock  which  has  been  improperly  sold, 
or  which  a  timely  investment  would  have  produced.  The 
effect  in  this  respect  of  an  option  given  by  the  instrument 
of  trust  to  invest  either  in  stock  or  real  security,  but  not 
exercised  by  the  trustee,  appears  to  be  doubtful,  (e)  ^  If 
there  is  also  an  express  direction  to  accumulate,  the  re- 
placement may  be  extended  to  the  amount  of  accumula- 
tion which  would  have  been  produced  by  a  proper  invest- 
ment of  the  dividends. (/)  If  an  improper  investment 
has  been  made,  it  is  considered,  as  against  the  trustee 
himself,  equivalent  to  no  investment.  But  in  favor  of 
r*fi/t1  ^^®  *cestui  que  trust  it  gives  an  option  to  claim 
either  the  investment  made,  or  the  replacement  of 
the  original  fund  with  interest,  according  as  the  one  or 
the  other  may  be  most  for  his  benefit.  (^) 

If  there  be  circumstances  of  actual  malfeasance,  as,  for 

'  [e)  Byrchall  v.  Bradford,  6  Madd.  235  ;  Watts  v.  Girdlestone,  6  Bea. 
188  5  Ames  v.  Parkinson,  7  Id.  379  ;  Shepherd  v.  Mouls,  4  Hare  500. 
(/)  Pride  v.  Fooks,  2  Bea.  430. 
( g)  Lane  v.  Dighton,  Amb.  409  ;  Infra,  Conversion. 

^  It  is  now  held  that  the  trustee  is  liable  in  such  case  only  for  principal 
and  interest,  and  not  for  the  value  of  the  stock.  See  Hill  on  Trustees,  4th 
Am.  ed.  567,  in  note. 


ORDINARY    AND    CHARITABLE    TRUSTS.  169 

instance,  if  the  trustee  has  not  only  neglected  to  invest 
the  fund  but  has  applied  it  to  his  own  purposes,  as  by 
using  it  in  his  trade,  he  may  be  charged  with  interest  at 
five  per  cent.,  instead  of  four.  And  the  same  may  be 
done  where  his  misconduct  has  been  very  gross,  as  where 
an  executor,  being  directed  to  lay  out  property  in  the 
funds,  had  unnecessarily  sold  out  stock,  kept  large  bal- 
ances in  his  hands,  and  resisted  payment  of  debts  by  a 
false  pretence  of  outstanding  demands.  Where  the  im- 
proper application  has  produced  an  ascertainable  profit, 
as,  for  example,  where  the  trust  money  has  been  applied 
either  solely  or  as  mixed  up  with  other  property  belong- 
ing to  the  trustee,  in  carrying  on  a  trade  or  other  specula- 
tion, the  cestui  que  trust  is  entitled  to  claim  the  profits. 
And  with  this  view  he  may  insist  on  an  account  of  the 
profits  made,  so  that  after  they  have  been  ascertained,  he 
may  have  an  option  to  accept  either  the  amount  realized, 
or  interest  at  five  per  cent.  (A)  ^ 

In  some  cases,  where  there  has  been  an  express  direc- 
tion to  accumulate,  accompanied  by  special  circum- 
stances of  malfeasance,  the  account  has  been  directed 
in  such  a  form  as  to  charge  the  trustee  with  compound 
interest.  (^) 

The  cost  of  a  suit  for  rectifying  a  breach  of  trust  are 
to  some  extent  dependent  on  the  degree  of  misconduct. 

(A)  Tebbs  v.  Carpenter,  1  Mad.  290;  Crackelt  v.  Bethune,  1  J.  &  W. 
586  ;  Docker  v.  Somes,  2  M.  &  K.  655. 

(i)  Raphael  v.  Boehm,  11  Ves.  92  ;  13  Ves.  407,  590  ;  Walker  v.  Wood- 
ward, 1  Ruse.  107  ;  Tebbs  v.  Carpenter,  1  Mad.  290  ;  Heighington  ».  Grant, 
5  M.  &  C.  258. 

'  On  the  subject  of  the  liability  of  a  trustee  to  interest,  the  cases  will  be 
found  collected  in  Hill  on  Trustees,  4th  Am.  ed.  568,  in  note.  See  supra 
note  to  page  56. 


170  ADAMS's    DOCTRINE    OF    EQUITY. 

The  general  rule  seems  to  be,  that  if  the  suit  has  been 
actually  occasioned  by  the  breach  of  trust,  the  trustee 
must  pay  the  costs.  If  a  suit  were  necessary  for  other 
r*fi^l  purposes,  *as  for  administering  the  estate  or  con- 
struing the  trusts,  he  may  have  his  general 
costs,  as  between  solicitor  and  client,  notwithstanding 
that  it  includes  a  prayer  for  remedying  the  effect  of  his 
misconduct.  But  he  may,  at  the  same  time,  be  com- 
pelled to  pay  any  additional  costs,  which  that  misconduct 
occasions.^ 

The  jurisdiction  for  compelling  admittance  to  copyholds 
seems  analogous  to  that  for  compelling  performance  of 
a  trust.  For  the  copyholder  has  the  beneficial  interest 
in  the  land,  and  the  lord  is  bound  to  perfect  his  title  by 
admittance,  and  to  place  the  evidence  of  it  on  the  manor 
rolls.  But  the  lord  cannot  e  converso  bring  his  bill 
against  the  copyholder,  to  compel  him  to  come  in  and  be 
admitted  tenant ;  for  he  has  his  remedy  by  seizing  the 
land  after  proclamation  made.  It  is  said,  too,  that  if 
there  be  error  in  any  adversary  proceeding  in  the  lord's 
Court,  the  Court  of  Chancery  will  order  the  lord  to  ex- 
amine it ;  and  that  if  judgment  be  given  in  the  lord's 
Court  on  a  copyholder's  petition,  though  no  appeal  or  writ 
of  error  will  lie,  yet  the  Court  of  Chancery  will  cor- 
rect the  proceedings,  if  anything  be  done  against  con- 
science. (^) 

Besides  the  ordinary  trusts  which  we  have  just  con- 
sidered, there  is  another  class  of  trusts,  those  for  char- 
itable land  public  purposes,  where  the  legal  ownership  is 

{k)  Christian  v.  Corren,  1  P.  Wms.  329  ;  Clayton  v.  Cookes,  2  Atk.  449  ; 
Ash  V.  Rogle,  1  Vern.  367  ;  Williams  v.  Lord  Lonsdale,  3  Vcs.  752 ;  Wid- 
dowson  V.  Lord  Harrington,  1  J.  &  W.  532. 

^  See  Hill  on  Trustees,  p.  856,  et  seq.,  4th  Am.  ed. 


ORDINARY    AND    CHARITABLE    TRUSTS.  171 

conferred  on  a  fiduciary  holder,  but  the  trust  is  declared 
for  general  objects,  and  not  for  the  benefit  of  a  specific 


*  Upon  the  subject  of  charitable  trusts,  bequests  for  pious  and  charitable 
uses,  and  also  the  doctrine  of  cy  pres,  see  the  following  authorities  :  Bap- 
tist Association  v.  Hart's  Executors,  4  Wheaton  1 ;  Inglis  v.  The  Trustees 
of  the  Sailor's  Snug  Harbor,  3  Peters  99  ;  Trustees  of  the  Baptist  Associa- 
tion V.  Smith,  3  Peters'  Appendix  481  ;  Executors  of  Burr  v.  Smith  et  al., 
7  Verm.  241 ;  Gallego's  Executors  v.  Attorney -General,  and  Id.  r.  Lambert 
and  wife,  3  Leigh  450 ;  Shotwell's  Executor  r.  Mott  et  al.,  2  Sandf.  Ch. 
46;  Vidal  et  al.  v.  Girard  Executors,  2  How.  U.  S.  127  ;  City  of  Philadel- 
phia V.  Girard's  Heirs,  45  Penn.  St.  9 ;  Miller  v.  Porter,  53  Penn.  St.  292. 
Mr.  Justice  Baldwin,  in  the  celebrated  case  of  Magill  v.  Brown,  which  in- 
volved the  construction  of  the  will  of  Sarah  Zane  (reported  in  Brightly's 
(Pa.)  Nisi  Prius  Reports,  p.  347,  &c.)  gave  to  the  subject  of  bequests  for 
pious  and  charitable  uses,  a  most  profound  investigation,  and  condensed  in 
the  elaborate  and  learned  opinion,  which  he  delivered  in  that  cause,  all 
the  English  and  American  learning  upon  this  most  interesting  branch  of 
equity  jurisprudence.  In  some  of  the  United  States,  where  the  Statute  of 
43  Elizabeth  is  not  in  force,  it  has  been  held  that  the  same  liberal  princi- 
ples as  to  charitable  trusts,  were  applied  in  the  Court  of  Chancery  at  com- 
mon law,  independently  of  that  statute  ;  and  that  charities  within  its  defi- 
nition or  analogies  would  be  enforced,  though  the  beneficiaries  are  too 
vaguely  designated,  to  claim  for  themselves  that  assistance.  All  that  is 
necessary  is  that  a  discretion  in  the  application  of  the  funds  shall  have 
been  vested  somewhere,  by  the  donor :  Vidal  v.  Girard,  2  How.  S.  C.  127  ; 
Brown  v.  Kelsey,  2  Cush.  243  ;  Burr  v.  Smith,  7  Verm.  241 ;  King  v.  Wood- 
hull,  3  Edw.  Ch.  79  :  Banks  v.  Phelan,  4  Barb.  S.  C.  80 ;  Shotwell  r.  Mott, 
2  Sandf.  Ch.  46 ;  Newcomb  v.  St.  Peter's  Church,  Id.  636 ;  Williams  r. 
Williams,  4  Selden  525  ;  McCaughal  v.  Ryan,  27  Barb.  376  ;  Bascomb  r, 
•  Albertson,  34  N.  Y.  584 ;  Whitman  r.  Lex,  17  S.  &  R.  88  ;  Zane's  Will, 
Brightly  350;  McCord  v.  Ochiltree,  8  Blackf.  15:  State  ».  McGowen,  2 
Ired.  Ch.  9 ;  Griffin  v.  Graham,  I  Hawks  96 ;  Att.-Gen.  ».  Jolly,  1  Rich. 
Eq.  99 ;  Beall  v.  Fox,  4  Geo.  404 ;  Wade  v.  American  Col.  Soc,  7  S.  &  M. 
663;  Dickson  r.  Montgomery,  1  Swan  (Tenn.)  348;  Carter  v.  Balfour,  19 
Ala.  814  ;  Urmey's  Executors  v.  Woodon,  1  Ohio  St.  N.  S.  160  ;  White  v. 
Fisk,  22  Conn.  31 ;  Levy  v.  Levy,  33  N.  Y.  97.  In  other  states,  the 
statute  has  been  declared  to  be  still  in  force  :  Griffin  v.  Graham,  1  Hawks. 
96 ;  Gass  V.  Wilhite,  2  Dana  170;  Att.-Gen.  v.  Wallace,  7  B.  Monr.  611  ; 
Tainter  v.  Clark,  5  Allen  66 ;  Perin  v.  Carey,  24  Howard  465 ;  Hill  on 
Trustees  200,  201,  701. 
In  Virginia  and  Maryland,  however,  it  has  been  decided  that  neither  the 


172  ADAMS'S    DOCTRINE    OF     EQUITY. 

The  meaning  of  the  word  charity,  as  applied  to  a  trust, 
is  different  from  any  signification  which  it  ordinarily  bears. 

The  word  in  its  widest  sense  denotes  all  the  good  affec- 
tions which  men  ought  to  bear  towards  each  other;  in  its 
most  restricted  and  most  usual  sense,  relief  of  the  poor. 

In  neither  of  these  senses  is  it  employed  by  the  Court  of 
Chancery,  but  a  signification  has  been  affixed  to  it,  de- 
r:^f!:a-\  rived  *for  the  most  part  from  the  enumeration 
given  in  the  Statute  of  Charitable  Uses.(^)  And 
the  purposes  enumerated  in  that  act,  together  with  others 
analogous  to  them,  are  accordingly  considered  as  the  only 
charities  which  the  Court  will  recognise. 

The  purposes  enumerated  in  the  statute  as  charitable 
are  "the  relief  of  aged,  impotent,  and  poor  people;  the 
maintenance  of  maimed  and  sick  soldiers  and  mariners; 
the  support  of  schools  of  learning,  free  schools,  and 
scholars  of  universities;  repairs  of  bridges,  &c.;  educa- 
tion and  preferment  of  orphans;  the  relief  and  mainte- 
nance of  houses  of  correction;  marriages  of  poor  maids; 
help  of  young  tradesmen,  handicraftsmen,  and  persons 
decayed;  redemption  or  relief  of  prisoners  or  captives; 
and  the  aid  of  poor  inhabitants  concerning  payment  of 
fifteenths,  setting  out  of  soldiers,  and  other  taxes."  These 
are  the  only  uses  which  the  statute  in  term  reaches,  but 

{I)  43  Eliz.  c.  4. 

statute  Dor  the  principles  which  it  embodies,  are  in  force  :  Baptist  Associ- 
ation V.  Hart,  4  Wheat.  1 ;  Wheeler  v.  Smith,  9  How.  U.  S.  58  ;  Gallego  v. 
Att.-G'en.,  3  Leigh  451  ;  Carter  v.  Wolfe,  13  Grat.  301 ;  Dashiell  v.  Att- 
Gen.,  5  Harr.  &  J.  392;  6  Id.  1;  Wilderman  v.  Baltimore,  8  Md.  551. 

In  the  recent  case  of  Fontain  v.  Ravenal,  17  How.  U.  S.  369,  it  was  held  by 
a  majority  of  the  court,  that  the  courts  of  the  United  States  had  no  inde- 
pendent power  to  administer  the  law  of  charitable  uses,  whether  under  the 
Statute  of  Elizabeth,  or  otherwise,  except  so  far  as  it  had  been  adopted 
into  the  lex  rei  sitce. 


ORDINARY    AND    CHARITABLE    TRUSTS.  173 

it  is  not  necessarily  confined  to  them ;  and  gifts,  not  within 
its  letter,  have  been  deemed  charitable  within  its  equity. 
Such,  for  instance,  are  gifts  for  religious  or  educational 
purposes ;  for  the  erection  of  a  hospital  or  a  sessions 
house ;  or  for  any  other  beneficial  or  useful  public  pur- 
pose, not  contrary  to  the  policy  of  the  law.  But  a  gift 
merely  for  useful  or  benevolent  purposes,  without  specify- 
ing what  the  purposes  are,  does  not  constitute  a  gift  to 
charity ;  because  there  may  be  many  useful  or  benevolent 
purposes,  which  the  Court  cannot  construe  to  be  charit- 
able ;  a  gift  also  to  mere  private  charity  is  not  within  the 
analogy  of  the  statute ;  and  although  there  are  cases 
where  the  Court  has  apparently  interfered  in  favor  of 
private  charity,  yet  such  cases  have  in  fact  been  those 
not  of  gifts  to  charitable  purposes,  but  of  gifts  to  indi- 
viduals with  a  benevolent  purpose.  Such,  for  example, 
would  be  a  gift  to  "  poor  relations."  That  is  not  a  charity 
in  the  legal  sense  of  the  term,  but  a  trust  to  give  to  poor 
relations;  and  the  only  question  under  such  a  trust  is, 
whether  the  objects  are  sufficiently  specified  to  enable 
*the  Court  to  execute  it,  or  whether  the  gift  is  r^e-r-] 
void  on  the  ground  of  uncertainty.  (»2)^ 

(m)  Morice  v.  Bishop  of  Durham,  9  Yes.  399,  405 ;  10  Id.  522,  541 ; 
Mitford  V.  Reynolds,  1  Ph.  185;  Nash  r.  Morley,  5  Bea.  177;  Kendall  v. 
Granger,  5  Id.  3<X) ;  Townsend  v.  Carus,  3  Hare  257 ;  Nightingale  v. 
Goulburn,  5  Hare  484  ;  1  Jarm.  on  Wills  192. 

^  See  Saltonstall  v.  Sanders,  11  Allen  446.  A  charity  is  a  gift  to  be  ap- 
plied consistently  with  existing  laws,  for  the  benefit  of  an  indefinite  num- 
ber of  persons,  either  by  bringing  their  minds  or  hearts  under  the  influence 
of  education  or  religion,  by  relieving  their  bodies  from  disease,  suffering 
or  constraint ;  by  assisting  them  to  establish  themselves  in  life,  or  by 
erecting  or  maintaining  public  works,  or  otherwise  lessening  the  burdens 
of  government :  [Per  Gray,  J.,]  Jackson  v.  Phillips,  14  Allen  (Mass.)  539. 
A  gift  designed  to  promote  the  public  good,  by  the  encouragement  of 
learning,  science  and  the  useful  arts,  without  any  particular  reference  to 


174  ADAMS's    DOCTRINE    OF    EQUITY. 

In  order  to  create  a  public  or  charitable  trust,  it  is  not 
necessary  that  the  property  on  which  the  trust  attaches 
should  be  derived  from  private  bounty.  The  principle  is 
equally  applicable  to  a  fund  levied  by  authority  of  Parlia- 
ment, and  placed' in  the  hands  of  public  officers,  in  order 
to  its  application  for  public  purposes.  And  in  accordance 
with  this  view,  it  has  been  determined  that  since  the 
passing  of  the  Municipal  Corporation  Act,{n)  directing 
the  corporation  property  to  be  applied,  first,  for  certain 
specified  purposes,  and  afterwards,  for  other  general  pur- 
poses for  the  benefit  of  the  town,  a  trust  has  attached  on 
the  property,  giving  jurisdiction  in  equity  to  control  any 
improper  dealing  by  the  corporation,  (o) 

It  should  be  observed,  that  trusts  for  charitable  pur- 
poses, equally  with  those  for  individual  benefit,  must  be  of 
a  character  not  prohibited  by  the  policy  of  the  law.  A 
trust  therefore  to  promote  religion  must  not  be  directed  to 
what  the  law  calls  a  superstitious  use ;  as,  for  example, 
the  maintenance  of  a  priest  to  pray  for  the  soul  of  the 
donor.^  If  such  a  trust  be  created  in  terms  which  show 
that  the  illegal  object  alone  was  contemplated,  e.  g.^  that 
the  only  object  was  to  obtain  for  the  donor  the  benefit  of 
the  prayers,  the  gift  will  be  simply  void.  If  it  appears 
that  charity  was  the  object  contemplated,  e.  g.,  that  it  was 

(n)  5*6  Win.  4,  c.  76,  s.  92. 

(o)  Att.-Gen.  v.  Mayor  of  Dublin,  1  BUgh.  N.  S.  312  ;  Att.-Gen.  v.  Comp- 
ton,  1  N.  C.  C.  417  ;  Att.-Gen.  v.  Aspinwall,  2  M.  &  C.  613  ;  Att.-Gen.  v. 
Corporation  of  Poole,  2  K.  190;  4  M.  &  C.  17  ;  8  CI.  &  F.  409 ;  Att.-Gen. 
V.  Shrewsbury,  6  Bea.  220. 

the  poor,  is  a  charity:  American  Academy  v.  Harvard  College,  12  Gray 
(Mass.)  582. 

*  It  has  been  held  that  there  are  no  uses  which  can  be  denominated 
superstitious  in  the  United  States :  Methodist  Church  v.  Remington,  1 
Watts  218  ;  Ga?s  v.  Wilhite,  2  Dana  170. 


ORDINARY    AND    CHARITABLE    TRUSTS.  175 

intended  to  benefit  the  priest  or  to  support  his  chapel,  the 
illegality  of  the  particular  method  will  not  exclude  some 
other  application,  but  the  fund  will  be  at  the  disposal  of 
the  Crown,  to  be  applied  *under  the  sign  manual  rH;f>o-i 
for  some  lawful  object.  ( p)  In  respect  also  to  gifts 
for  any  charitable  purpose,  whether  religious  or  not,  there 
is  an  express  restriction  by  statute,  invalidating  all  gifts 
of  or  charges  on  real  estate,  or  on  estate  savoring  of  the 
realty,  for  charitable  uses,  unless  made  by  indenture, 
twelve  months  previously  to  the  donor's  decease.  By  the 
operation  of  this  act,  if  the  trust  is  entirely  for  charity, 
the  gift  is  invalid  at  law ;  if  the  gift  at  law  is  good,  yet 
the  trust  is  invalid,  and  the  estate  must  be  reconveyed.($')^ 
The  incidents  of  a  trust  for  charitable  purposes  are  for 
the  most  part  the  same  with  those  of  an  ordinary  trust. 
The  principal  points  of  distinction  are,  first,  that  a  char- 
itable trust  is  not  afi'ected  by  lapse  of  time  in  the  same 
manner  as  a  trust  for  private  persons ;  ^  and  secondly,  that 
where  an  apparent  charitable  intention  has  failed,  whether 

(p)  West  V.  Shuttleworth,  2  M.  &  K.  684;  Infra,  cypres,  Application. 
iq)  6  Geo.  3,  c.  136  ;  Jarm.  on  Wills  198. 

^  See  Philpott  i'.  St.  George's  Hospital,  6  H.  L.  Cas.  338 :  Hall  v.  War- 
ren, 9  H.  L.  Cas.  420.  The  Statutes  of  Mortmain  are  not  generally  in 
force  in  the  United  States  :  2  Kent's  Com.  282 ;  Vidal  v.  Girard,  2  How. 
U.  S.  187 ;  Hill  on  Trustees  76,  710,  4th  Am.  ed.  There  are,  however, 
legislative  provisions  regulating  charitable  gifts  in  certain  particulars. 

'  No  neglect  or  perversion  of  the  funds  of  a  charity,  by  the  trustees, 
will  be  permitted  to  aflfect  it :  Hadley  v.  Hopkins  Acad.,  14  Pick.  240 : 
Griffitts  V.  Cope,  17  Penn.  St.  96 ;  Wright  v.  Linn,  9  Id.  433 ;  Att.-Gen.  v. 
Wallace,  7  B.  Monr.  611  ;  Price  v.  Methodist  Church,  4  Hamm.  542.  Nor 
will  the  cestui  que  trust  be  affected  by  the  declarations  of  the  trustees : 
McKissick  v.  Pickle,  16  Penn.  St.  148.  But  a  general  limitation  over  from 
one  charity  to  another,  contingent  on  the  neglect  of  the  trustees  of  the 
former,  at  any  time,  for  a  fixed  period,  to  carry  on  the  charity  properly,  is 
valid,  and  does  not  create  a  perpetuity:  Christ's  Hospital  r.  Grainger,  7 
Macn.  &  Gord.  460. 


176  ADAMS's     DOCTRINE     OF     EQUITY. 

by  an  incomplete  disposition  at  the  outset,  or  by  subsequent 
inadequacy  of  the  original  object,  effect  may  be  given  to 
it  by  a  cypres  or  approximate  application,  to  the  exclusion 
of  a  resulting  trust  for  the  donor. 

The  first  of  these  peculiarities  exists  in  reference  to  the 
rule  which  has  been  already  stated,  that,  as  between  the 
cestui  que  trust  and  an  express  trustee,  no  length  of  time 
is  a  bar  to  the  right ;  and  that,  on  the  other  hand,  with 
respect  to  constructive  trustees,  or  parties  who  have  ac- 
quired an  estate  with  notice  of  a  trust,  the  same  principle 
does  not  apply.  In  case  of  charities,  both  branches 
of  this  rule  are  subject  to  modification.  With  respect  to 
the  first  branch,  it  has  been  determined,  that  if  the  trus- 
tees of  a  charity  have  bond  fide  mistaken  the  right  mode 
of  application,  and  have  actually  disbursed  the  funds  in 
accordance  with  that  mistake,  and  without  notice  of  the 
objection,  the  disbursements  shall  not  be  disallowed ;  (r) 
and  further,  that  although  the  mere  length  of  an  errone- 
r*AQ-l  ous  usage  *cannot  alter  the  original  trust,  yet 
where  trusts  have  been  imposed  on  colleges  or 
other  existing  corporations,  who  are  under  no  obligation 
to  accept  them,  traditional  usage  may  be  allowed  an  effect 
which  in  ordinary  cases  it  might  not  possess.  And  it  has 
been  accordingly  held  that,  if  there  are  questions  on  the 
original  instrument  of  foundation,  and  an  arrangement  be 
fairly  made  at  the  time  of  acceptance,  and  evidenced  by 
cotemporaneous  instruments  or  by  constant  subsequent 
usage,-  the  Court  will  not  disturb  it,  although  in  its  own 
view  of  the  original  instrument,  such  arrangement  was  in 
effect  a  modification  of  that  which  might  now  be  con- 
sidered the  best  construction,  (s) 

(r)  Att-Gen.  v.  Pretyman,  4  Bea.  462;  Att.-Gen.  v.  Draper's  Company, 
6  Id.  382 :  Att.-Gen.  v.  Mayor  of  Exeter,  Jac.  443  -,  2  Russ.  362. 

[s)  Attorney-General  v.  Gains  College,  2  K.  150 ;  Attorney-General  v. 
Draper's  Company,  6  Bea.  382. 


ORDINARY    AND    CHARITABLE    TRUSTS.  177 

In  these  instances  the  lapse  of  time  is  allowed  to  ope- 
rate against  a  charity  to  a  greater  extent  than  against  an 
individual.  But  on  the  other  hand,  its  operation  under 
the  second  branch  of  the  rule  as  a  bar  to  claims  against  a 
constructive  trustee,  was  not,  until  the  late  statute  of  3 
&  4  Wm.  4,  c.  27,  available  to  protect  a  purchaser  with 
notice  of  a  charitable  trust,  either  by  analogy  to  the  Stat- 
ute of  Limitations,  or  as  a  presumptive  bar  by  acquies- 
cence. The  precise  effect  of  the  statute  does  not  appear 
to  have  been  determined.  Its  enactments  are  in  terms 
imperative,  and  it  contains  no  exception  in  favor  of  charity. 
But  it  seems  to  have  been  doubted  by  Sir  Edward  Sug- 
den  whether  charity  is  not  a  casus  omissus,  and  whether 
the  former  rule  does  not  continue.  (^)^ 

The  second  and  most  singular  peculiarity  is,  that  where 
an  apparent  charitable  intention  has  failed,  w^hether  by  an 
incomplete  disposition  at  the  outset,  or  by  subsequent  in- 
adequacy of  the  original  object,  effect  will  be  given  it  by 
a  ct/  pres  or  approximate  application,  notwithstanding  that 
in  ordinary  cases  the  trust  would  be  void  for  uncertainty, 
or  would  result  to  the  donor  or  his  representative.^ 

{t)  3  &  4  Wm,  4,  c.  27,  ss.  24,  25 ;  Incorporated  Society  v.  Richards,  1 
Conn.  &  L.  68 ;  Att.-Gen.  v.  Flint,  4  Hare  147 ;  Commissioners  of  Dona- 
tions V.  Wybrants,  2  Jones  and  Latouche  182. 

^  Att-Gen.  v.  Wilkins,  17  Bea.  285 ;  but  contra  in  the  House  of  Lords, 
Magdalen  College  v.  Att.-Gen.,  6  H.  L.  Cas.  189  ;  Att.-Gen.  v.  Davey,  4 
De  G.  &  J.  136.  See  Att.-Gen.  v.  The  Federal  Street  Meeting  House,  3 
Gray  1. 

*  The  cy  pres  doctrines  of  the  English  Chancery  have  not  been  generally 
adopted  in  the  United  States,  in  their  application  to  charitable  trusts : 
Carter  v.  Balfour,  18  Ala.  814;  White  ».  Fisk,  22  Conn.  31 ;  McAuley  v. 
Wilson,  1  Dev.  Eq.  276 ;  Beekman  v.  The  People,  23  N.  Y.  298 ;  Wit: 
man  v.  Lex,  17  S.  &  R.  88;  see  Brendle  v.  The  German  Reformed 
Congregation,  33  Penn.  St.  418;  Att.-Gen.  w.  Jolly,  2  Strob.  Eq.  379; 
Dickson  v.  Montgomery,  1  Swan  348  ;  Venable  v.  Coffman,  2  W.  Va.  310. 
12 


178  ADAMS's    DOCTRINE    OF    EQUITY. 

r*7m  *The  soundness  of  the  distinction  thus  drawn  is 
perhaps  open  to  douht ;  but  its  existence  is  estab- 
lished by  many  precedents ;  and  it  appears  to  rest,  partly 
on  the  favor  due  to  charity,  and  partly  on  the  hypothesis 
that  the  details  of  a  charitable  gift  are  not,  like  those  of  a 
gift  to  individuals,  the  primary  object  of  the  donor,  but 
that  the  true  intention  is,  first  to  effectuate  a  charity,  and 
secondly,  to  do  so  in  the  particular  way  w^hich  the  trust 
denotes.  Of  course  this  doctrine,  whether  well  or  ill 
founded,  cannot  apply  to  an  ordinary  trust :  for  there  the 
donor's  object  is  to  benefit  the  persons  specified;  and  if 
that  benefit  is  not  available,  there  is  no  ulterior  intention 
to  which  effect  can  be  given. 

In  accordance  with  this  principle  two  doctrines  appear 
to  be  established,  viz. :  1.  If  in  a  gift  to  charity  an  in- 
tention be  manifested  of  appropriating  the  entire  fund,  it 
will  be  effectuated,  to  the  exclusion  of  a  resulting  trust, 
notwithstanding  that  the  gift  actually  made  is  of  a  portion 
only.  And  such  intention  may  be  evidenced,  either  by 
words  declaring  an  intention  to  give  the  whole ;  or  by  a 
gift  of  specified  sums  out  of  the  income,  if  it  appear  that 
at  the  time  of  gift  such  specified  sums  exhausted  the 
whole  available  income.  For  such  exhausting  gift  is  con- 
sidered equivalent  to  a  gift  of  the  whole,  and  will  carry 
any  subsequent  increase.  If  it  appears  from  the  instru- 
ment of  gift  that  the  specified  payments  were  meant  as 
fixed  charges,  and  not  by  way  of  illustration  only,  and 

It  was,  however,  recognised  in  Baker  v.  Smith,  13  Metcalf  41;  Burr's 
Exrs.  V.  Smith,  7  Verm,  287  (semble)  ;  Urmey's  Exr.  v.  Wooden,  1  Ohio 
N.  S.  160.  See  Att.-Gen.  v.  Wallace,  7  B.  Monr.  611 ;  Brown  v.  Concord, 
33  N.  H.  285;  Oilman  v.  Hamilton,  16  Illinois  225.  By  a  recent  Act  of 
Assembly  in  Pennsylvania,  the  cy  pres  doctrine  has  been  introduced  into 
the  law  of  that  state  to  a  certain  extent :  Brightly's  Purd.  145  ;  Zeisweiss 
V.  James,  63  Penn.  St.  465. 


ORDINARY    AND    CHARITABLE    TRUSTS.  179 

that  the  corpus  was  meant  for  the  benefit  of  the  immediate 
donees,  they  will  of  course  be  entitled  in  exclusion  of  the 
charity,  to  any  subsequent  increase.  The  result  of  the 
decisions  in  this  respect  is,  that  an  intention  in  favor  of 
the  donee  will  be  presumed,  first,  if  the  gift  be  made  to 
him  subject  to  certain  specified  payments;  secondly,  if  it 
be  made  on  condition  of  making  certain  payments,  and 
subject  to  forfeiture  on  non-performance ;  or  thirdly,  if 
the  donor  would  be  liable  to  make  good  the  payments,  not- 
withstanding a  subsequent  *deficiency  of  the  fund.  p^M.,  -. 
In  like  manner,  if  it  is  apparent  that  the  charity 
was  to  have  only  a  limited  interest,  but  that  the  immedi- 
ate donee  was  to  have  no  benefit,  the  surplus  or  the  sub- 
sequent increase  will  revert  to  the  donor  or  his  heir.(w)^ 

2.  If  in  a  gift  to  charity  the  intended  object  be  not 
specified  at  all,  or  not  with  sufficient  certainty ;  or  if  it 
cease  to  exist,  or  to  afford  the  means  of  applying  the 
entire  fund,  the  presumed  general  object  will  be  effectu- 
ated by  an  application  ci/  pres ;  i.e.,  an  application  to 
some  other  purpose,  having  regard  as  nearly  as  possible 
to  the  original  plan. 

The  assumption  on  which  this  doctrine  is  based,  viz., 
that  the  general  idea  of  charity  was  uppermost  with  the 
donor,  and  that  the  particular  charity  specified  was  merely 
illustrative,  is  one  of  a  very  doubtful  character.  Lord 
Eldon  repeatedly  expressed  his  disapprobation  of  it,  but 

(tt)  Thetford  School  Case,  8  Rep.  130  ;  Att.-Gen.  v.  Arnold,  Show.  P.  C. 
22;  Att.-Gen.  v.  Mayor  of  Bristol,  2  J.  &  W.  294;  Att.-Gen.  v.  Skinners' 
Company,  2  Russ.  407 ;  Att.-Gen.  v.  Smythies,  2  R.  &  M.  717 ;  Att.-Gen. 
V.  Wilson,  3  M.  &  K.  362 ;  Att.-Gen.  v.  Drapers'  Company,  2  Bea.  508  ; 
Att.-Gen.  v.  Coopers"  Company,  3  Id.  29 ;  Att.-Gen.  v.  Grocers'  Company, 
6  Id.  526 ;  Jack  v.  Burnett,  12  CI.  &F.  812. 

^  See  the  Mayor  of  Beverly  !;.  The  Att.-Gen.,  6  H.  L.  Cas.  310;  Att.- 
Gen.  V.  Dean  of  Winsor,  8  H.  L,  Cas.  369. 


180  ADAMs's    DOCTRINE    OF    EQUITY. 

considered  it  firmly  established  by  precedent,  and  for  that 
reason  refused  to  overthrow  it.  (e')  It  is,  however,  a  mere 
presumption  of  law ;  and,  therefore,  if  it  appears  from 
the  wording  of  the  instrument  that  the  individual  charity 
was  the  only  one  in  the  donor's  mind,  and  that,  if  that 
should  fail,  he  intended  the  property  to  revert  to  himself, 
there  is  no  equity  to  alter  his  disposition,  {w) 

The  manner  in  which  the  c^  pres  application  is  effected, 
is  by  referring  it  to  the  Master  to  settle  a  scheme,  having 
a  regard  to  the  instrument  of  gift.  In  ordinary  cases 
this  is  not  difficult;  as,  for  example,  in  one  instance, 
where  a  legacy  was  given  to  University  College  to 
purchase  advoAvsons,  and  it  was  found  that  they  already 
held  as  many  advowsOns  *as  the  law  would  permit; 
'-  "'-'  and  in  another,  where  a  devise  was  made  to 
Trinity  Hall,  Cambridge,  for  the  purpose  of  founding 
fellowships  for  the  scholars  of  a  particular  school,  and  the 
college  alleged  that  fellowships  of  this  class  were  contrary 
to  their  statutes.  In  both  these  cases  the  real  intention 
of  the  doner  was  sufficiently  obvious.  There  could  be  no 
doubt  in  the  one  that  he  meant  to  increase  the  advowsons 
of  the  college,  or  in  the  other  that  he  meant  to  provide 
endowments  for  the  school;  and  accordingly  the  fund 
was  applied  in  the  former  case  for  increasing  the  value  of 
the  existing  advowsons,  and  in  the  latter  it  was  suggested 
by  Lord  Thurlow  that  it  would  be  near  the  purpose, 
if  the  college  would  admit  the  scholars  as  exhibitioners ; 
or  if  any  other  college  would  receive  them  as  fellows,  {x) 

(«)  Moggridge  v.  Thackwell,  7  Ves.  36  ;  Mills  v.  Farmer,  19  Id.  483. 

[w)  Corbyn  ».  French,  4  Ves.  418;  De  Themmines  v.  De  Boneval,  5 
Russ.  288  5  Att.-Gen.  v.  Whitchurch,  3  Yes.  141  •,  Cherry  v.  Mott,  1  M.  & 
C.  123. 

[x)  Att.-Gen.  r.  Green,  2  B.  C.  C.  492 ;  Att.-Gen.  v.  Andrews,  3  Ves. 
633. 


ORDINARY    AND    CHARITABLE    TRUSTS.  181 

In  cases  where  the  charity  is  of  a  compound  character, 
it  is  sometimes  difficult  to  determine  in  what  part  of  the 
description  its  essence  resides.  A  doubt  of  this  kind  arose 
in  a  case  where  a  gift  had  been  made  for  apprenticing  the 
sons  of  poor  Presbyterians,  resident  in  the  testator's 
parish ;  a  surplus  arose,  to  be  applied  ey  iwes;  and  it  was 
contended  on  one  side,  that  the  proper  objects  would  be 
poor  Presbyterians  resident  out  of  the  parish;  on  the  other, 
that  they  would  be  poor  persons  in  the  parish,  not  being 
Presbyterians.  The  Court,  on  looking  at  all  the  circum- 
stances came  to  the  conclusion,  that  the  profession  of 
Presbyterianism,  and  not  the  residence  in  the  parish  was 
in  the  particular  instance  the  primary  object,  and  decreed 
in  favor  of  the  first  scheme,  (y) 

In  some  instances  the  object  specified  is  so  peculiar, 
that  it  is  difficult  to  find  anything  substantially  analogous. 
In  this  case,  if  other  charities  are  mentioned  in  the  will, 
they  may  afford  a  clue  for  the  guidance  of  the  Court. 
The  application,  however,  must  be  a  cy  pres  one  to  the 
object  which  has  failed,  and  not  a  mere  transfer  to  the 
other  charities.  The  *principle  on  which  such  r^To-i 
charities  can  be  available  as  a  guide,  appears  to  be 
that  of  ascertaining  how  much  of  the  original  object  it  is 
possible  to  adopt,  and  then  filling  up  the  deficiencies  from 
the  other  objects.  An  instance  of  this  kind  occurred 
under  a  bequest  of  property  on  three  trusts ;  viz.,  as  to 
one-half  for  the  redemption  of  British  slaves  in  Algiers  ; 
as  to  a  quarter  for  Church  of  England  schools  in  London ; 
and  as  to  the  remaining  quarter  for  poor  freemen  of  the 
Ironmonger's  Company.  The  first  trust  failed  for  want 
of  objects.  It  was  held,  that  so  much  of  the  first  trust 
as  conferred  a  benefit   on  all  British  subjects  might  still 

[y)  Att.-Gen.  v.  Wansay,  15  Ves.  231. 


182  ADAMS's     DOCTRINE     OF     EQUITY. 

be  effectuated,  and  that  the  mode  of  effectuating  it  might 
be  borrowed  from  the  second  trusts;  and  the  fund  was 
accordingly  applied  for  the  maintenance  of  Church  of 
England  schools  throughout  England.  (0)  The  difficulties, 
however,  which  may  occur  in  discovering  an  analogy,  will 
not  obviate  the  necessity  of  doing  it.  If  the  fund  is 
clearly  dedicated  to  charity,  the  Court  of  Chancery  must 
so  apply  it.  And  similarities  of  character,  however  re- 
mote, may  properly  warrant  a  proposed  application,  if  no 
other  plan  of  nearer  affinity  can  be  found. 

The  jurisdiction  in  equity  for  a  cy  pres  application 
appears  to  exist  in  all  cases  where  the  original  gift  creates 
a  trust  for  distribution  in  charity,  although  the  trust  as 
designated  fails  of  effect.  But  if  there  be  a  general  inde- 
finite gift  to  charity  or  the  poor,  or  a  gift  to  a  charity  of 
a  superstitious  character,  which  is  considered  in  law  as 
equivalent  to  an  indefinite  gift,  it  seems  that  the  disposi- 
tion is  in  the  Crown  by  sign  manual,  (a) ^ 

The  jurisdiction  to  superintend  a  charitable  trust  is  set 
in  motion  by  the  information  of  the  Attorney-General 
r*74."l  *s^i^g  ^^  behalf  of  the  Crown,  or,  if  the  nature 
of  the  trust  is  such  that  its  non-performance  has 
inflicted  personal  injury  on  an  individual,  then  by  a  com- 
pound form  of  suit,  uniting  both  the  public  and  the  private 
wrong,  and  called  an  information  and  bill.  So  far  as  its 
exercise  is  required  for  controlling  the  management  of 
the  property,  it  extends   to  all  charities,  whether  corpo- 

(z)  Att.-Gen.  «.  Ironmongers'  Company,  2M.  &  K.  576  ;  2  Beav.  313  ; 
Cr.  &  P.  208 ;  10  CI.  &  F.  908. 

(a)  Moggridge  v.  Thackwell,  7  Ves.  36  ;  Hayter  v.  Trego,  5  Russ.  113  ; 
De  Themmines  v.  De  Bonneval,  5  Russ.  292  ;  Att.-Gen.  v.  Todd,  1  K.  803  ; 
Reeve  v.  Att.-Gen.,  3  Hare  191. 

'  See  article  in  the  American  Law  Register,  vol.  1,  N.  S.  pp.  385-400. 


ORDINARY    AND    CHARITABLE    TRUSTS.  183 

rate  or  not,  and  is  regulated  by  the  same  principles  as  in 
the  case  of  ordinary  trusts.  The  trustee  having  the  legal 
dominion,  may  exercise  that  dominion  for  effectuating  the 
objects  of  his  trust,  but  he  cannot  do  so  for  any  other 
object;  he  may  manage  the  property  in  a  husbandlike 
way,  but  he  cannot  waste  or  alienate  \t.{b) 

So  far  as  the  jurisdiction  is  sought  to  be  exercised  for 
directing  the  internal  administration  of  the  charity,  and 
determining  the  manner  in  which  the  funds  shall  be 
applied,  it  is  confined  to  charities  at  large,  i.  e.,  such  cha- 
rities as  have  no  charter  of  incorporation,  but  are  under 
the  management  of  private  persons,  or  of  some  independ- 
ent corporation,  in  whom,  as  trustees,  their  property  is 
vested. 

In  the  case  of  eleemosynary  corporations,  i.  e.,  corpo- 
rations established  by  charter  for  the  purposes  of  the 
charity,  and  having  endowments  for  that  purpose,  the 
jurisdiction  of  equity  is  confined  to  the  management  of 
the  estate,  and  does  not  extend  to  the  election  or  amotion 
of  corporators,  or  to  the  internal  administration  of  the 
charity.  The  proper  jurisdiction  for  these  purposes  is 
that  of  the  visitor,  which  is  incidental  to  all  eleemosy- 
nary corporations,  and,  if  not  expressly  or  impliedly  con- 
ferred by  the  charter  itself,  will  arise  of  common  right  to 
the  founder  and  his  heirs.  If  the  King  be  founder,  or 
if  the  heir  of  the  founder  be  unknown  or  a  lunatic,  the 
jurisdiction  will  be  in  the  Crown,  to  be  exercised  through 
the  Lord  Chancellor  on  petition  to  him.  If  the  visitor 
refuses  to  hear  and  decide  a  dispute,  he  may  be  compelled 
to  do  so  by  *mandamus ;  but  his  decision  cannot  r^jx-i 
be  controlled.     If,  however,  the  visitors  are  also 

(&)  Att.-Gen.  v.  Pargeter,  6  Bea.  150;  Att.-Gen.  v.  Foord,  6  Id.  289; 
Att.-Gen.  v.  Corporation  of  Newark,  1  Hare  395. 


184  ADAMS's    DOCTRINE    OF    EQUITY. 

in  receipt  of  the  revenue,  so  that  they  are  in  fact  trustees, 
subject  to  no  inclependentcontrol,  the  jurisdiction  of  equity 
will  attach ;  and  the  same  result  will  follow  when  the  ob- 
ject sought  is  beyond  the  visitor's  functions,  such,  for  in- 
stance, as  a  new  apportionment  of  the  charity  revenues.  (^) 

In  addition  to  the  jurisdiction  of  equity  in  matters  of 
charity,  a  special  jurisdiction  was  created  by  the  statute 
43  Eliz.  c.  4,  called  the  Statute  of  Charitable  Uses,  for 
remedying  abuses  of  charitable  gifts.  And  it  is  thereby 
enacted  that  commissioners  may  be  appointed  by  the  Crown 
for  the  regulation  of  charities,  whose  decision  shall  be 
subject  to  review  by  the  Lord  Chancellor,  with  a  further 
appeal  to  the  House  of  Lords.  The  statute,  however, 
does  not  exclude  the  right  to  proceed  in  Chancery ;  and 
the  proceeding  under  it  has  fallen  into  disuse. (c?)^ 

There  is  also  a  statutory  jurisdiction  in  the  Court  of 
Chancery  itself  for  remedying  abuses  by  a  summary  pro- 
cess, instead  of  the  more  regular  course  by  information 
and  bill.  This  jurisdiction  is  created  by  52  Geo.  3,  c.  101, 
commonly  known  as  Sir  Samuel  Romilly's  Act,  which 
directs  that,  where  a  breach  of  trust  has  been  committed 
by  the  trustees  of  a  charity,  or  where  the  direction  of  a 
Court  of  equity  is  deemed  necessary  for  its  administra- 
tion, the  parties  seeking  relief  may  proceed  summarily 

(c)  Ex  parte  Wrangham,  2  Ves.  Jun.  609  ;  Re  Queen's  Coll.  Jac.  1 ;  3 
Steph.  Bl.  183  ;  Ex  parte  Inge,  2  R.  &  M.  591 ;  Rex  v.  Archbishop  of  Can- 
terbury, 15  East  117;  Att.-Gen.  v.  Foundling  Hospital,  2  Ves.  Jun.  4"2 ; 
Att.-Gen.'w.  Dixie,  13  Ves.  519  ;  Ex  parte  Kirby  Ravensworth  Hospital,  15 
Ves.  305 ;  Att.-Gen.  v.  Earl  of  Clarendon,  17  Ves.  491 ;  Ex  parte  Berk- 
hamstead  Free  School,  2  Ves.  &  B.  134 ;  Att.-Gen.  v.  Lubbock,  1  Coop. 
Ch.  Ca.  15 ;  Att.-Gen.  v.  Smythies,  2  R.  &  M.  717,  737 ;  2  M.  &  C.  135. 

[d)  Att.-Gen.  v.  Mayor  of  Dublin,  1  Bl.  N.  S.  312,  347  ;  Incorporated 
Society  v.  Richards,  1  Conn.  &  L.  58. 

^  See  ante,  note  to  page  65. 


ORDINARY    AND    CHARITABLE    TRUSTS.  185 

by  a  petition  to  be  sanctioned  by  the  fiat  of  the  Attorney- 
General.  The  summary  jurisdiction  thus  conferred,  if  the 
statute  had  been  construed  in  its  widest  acceptation,  would 
have  been  one  of  a  very  *extensive  character,  but  r^ye-i 
it  is  confined  by  the  decisions  to  plain  breaches  of 
trust,  or  to  cases  where  no  contention  exists,  and  where 
the  trustees  are  merely  asking  the  direction  of  the  Court. 
If  any  question  is  involved  as  to  who  are  to  be  intrusted 
with  the  estate,  or  who  are  to  be  entitled  to  the  benefit  of 
it,  or  if  the  interest  of  any  stranger  may  be  affected,  or 
if  a  new  application  of  the  fund  is  sought,  the  proper 
course  is  by  an  information,  (e) 

In  the  particular  case  of  Grammar  Schools,  an  addi- 
tional jurisdiction  has  been  conferred  on  the  Court  by  3 
&  4  Vict.  c.  77.  And  authority  is  given  to  make  decrees 
and  orders,  either  in  the  progress  of  an  ordinary  suit,  or 
on  petition  under  Sir  Samuel  Romilly's  Act,  for  extend- 
ing the  system  of  education  to  other  branches  of  learning 
besides  Greek  and  Latin ;  for  extending  or  restricting  the 
right  of  admission ;  and  for  establishing  schemes  for  the 
application  of  the  revenue,  having  due  regard  to  the  inten- 
tions of  the  founder.  By  the  same  act  authority  is  given 
to  the  Court  to  enlarge  and  confer  powers  for  regulating 
the  discipline  of  such  schools,  and  to  appoint  the  mode  of 
removing  masters. 

A  summary  jurisdiction  is  also  conferred  by  statute  for 
superintending  and  controlling  the  officers  of  Friendly  So- 
cieties ;  (/)  for  apportioning  charitable  bequests  between 
new  parishes    and  districts   formed   under   the    Church 

(e)  52  Geo.  3,  c.  101 ;  Corporation  of  Ludlow  v.  Greenhouse,  1  Bl.  N.  S. 
17;  Re  Clark's  Charity,  8  Sim.  34;  Re  Phillipott's  Charity,  Id.  381; 
Re  West  Retford,  10  Id.  101 ;  Re  Parke's  Charity,  12  Id.  329. 

(/)  10  Geo.  4,  c.  56,  ss.  14,  15,  16. 


186  ADAMS's     DOCTRINE     OF     EQUITY. 

Building  Acts  and  the  remaining  parts  of  the  old  parishes, 
and  making  a  like  apportionment  of  debts  or  charges  con- 
tracted or  charged  on  the  credit  of  church  rates  ;  {g)  and 
for  administering  property  which  was  formerly  vested  in 
the  municipal  corporations  on  charitable  trusts.  (A) 

[g)  8  &  9  Vict.  c.  70,  s.  22. 
(A)  5  &  6  Win.  4,  c.  76,  s.  71- 


OF    SPECIFIC    PERFORMANCE.  187 


*CH  AFTER    11.  [*7r] 

OF     SPECIFIC    PERFORMANCE ELECTION MERITORIOUS    OR     IM- 
PERFECT CONSIDERATION DISCHARGE  BY    MATTER  IN  PAIS   OF 

CONTRACTS    UNDER    SEAL RELIEF   AGAINST    PENALTIES. 

The  jurisdiction  for  compelling  performance  of  a  con- 
tract involyes  the  consideration  not  merely  of  "what  is 
technically  termed  specific  performance,  but  also  of  the 
doctrines  of  election,  of  meritorious  or  imperfect  consider- 
ation, of  the  discharge  by  matter  in  pais  of  contracts 
under  seal,  and  of  relief  against  penalties  and  forfeited 
mortgages.  The  equities,  therefore,  which  exist  under 
those  heads,  except  those  relating  to  forfeited  mortgages, 
will  form  the  subject  of  the  present  chapter.  The  juris- 
diction of  equity  over  mortgages  will  be  afterwards  sepa- 
rately considered. 

The  equity  to  compel  Specific  Performance  of  a  contract 
arises  where  a  contract,  binding  at  law,  has  been  infringed, 
and  the  remedy  at  law  by  damages  is  inadequate.^     And 

^  The  character  of  the  relief  which  equity  affords  in  decreeing  the 
specific  performance  of  a  contract  does  not  differ  in  kind  from  that  which 
is  administered  by  the  same  system  of  jurisprudence  in  other  cases,  for 
the  relief  given  in  equity  is  always  specific.  See  Introduction,  page  xxxv., 
ante.  In  cases  of  contracts  the  jurisdiction  of  equity  arises  in  some  in- 
stances from  the  inability  to  estimate  damages  for  the  breach ;  and,  in 
others,  from  the  inadequacy  of  the  compensation  which  damages  afford ; 
and  the  jurisdiction  having  once  attached,  the  Court  goes  on  to  apply  its 
usual  remedy,  viz.,  specific  relief,  or  causing  that  to  be  actually  done  which 


188  ADAMS's    DOCTRINE    OF    EQUITY. 

in  order  to  originate  this  equity,  it  is  essential  that  the 
contract  shall  have  been  made  for  valuable  consideration, 
and  that  its  enforcement  in  specie  be  practicable  and 
necessary.^     The  validity  of  the   contract  at  law  is  not 

in  good  conscience  ought  to  be  done.  Equity  acts  "  specifically"  in  the 
enforcement  of  a  trust,  the  reformation  of  a  written  instrument,  and  other 
instances,  no  less  than  in  decreeing  the  performance  of  a  contract ;  and 
the  only  reason  why  the  term  "  specific"  seems  to  'have  been  more  fre- 
quently applied  to  the  last  case,  than  to  the  others,  is,  perhaps,  because  in 
the  performance  of  contracts  the  relief  in  equity  is  more  striking,  and 
more  in  contrast  with  the  common  law  remedies,  than  in  other  instances. 

The  Act  of  21  &  22  Vict.  c.  27,  commonly  known  as  Sir  Hugh  Cairns's 
Act,  provides  that  the  Court  may  either  in  addition  to  or  in  substitution  for 
the  relief  which  is  prayed,  grant  that  relief  which  would  otherwise  be 
proper  to  be  granted  by  another  Court — that  is  to  say,  award  damages. 
On  the  construction  of  this  act  see  Ferguson  v.  Wilson,  L.  R.  2  Eq.  77 ; 
Soames  v.  Edge,  Johns.  649;  Norris  v.  Jackson,  1  Johns.  &  H.  319;  Howe 
r.  Hunt,  31  Beav.  420.  In  Indiana  (by  statute)  specific  performance  is 
enforced  through  the  common  law  medium  of  a  trial  by  jury ;  and  in  Penn- 
sylvania a  similar  result  is  attained  as  respects  land  by  the  action  of  eject- 
ment. So  too  in  California :  Weber  v.  Marshall,  19  Cal.  447  ;  and  Wis 
consin:  Fisher  v.  Moolick,  13  Wis.  321. 

^  The  requisites  for  the  specific  performance  of  contracts  in  equity  are 
five:  First,  the  performance  in  specie  must  be  necessary ;  Second,  it'must 
be  practicable;  Third,  there  must  be  a  valuable  consideration ;  Fourth, 
the  terras  of  the  contract  must  be  certain  ;  and  Fifth,  it  must  be  reciprocal. 
To  these  rules  it  may  be  added,  generally,  that  the  allowance  of  this  relief 
is  a  matter  of  judicial  discretion. 

First.  The  relief  must  be  necessary,  and  this  necessity  may  result  either 
from  the  inadequacy  of  the  damages  afibrded  at  common  law,  or  from  the 
impossibility  of  ascertaining  those  damages.  Of  the  former,  instances  will 
be  found  in  Lloyd  v.  Loaring,  6  Vesey,  Jr.  773  ;  Nutbrown  v.  Thornton,  10 
Id.  159;  Earl  of  Macclesfield  v.  Davis,  3  Vesey  &  B.  16;  Lowther 
V.  Lowther,  13  Vesey  95 ;  Fells  v.  Read,  3  Id.  71 ;  Pusey  v.  Pusey,  1 
Vern.  273';  Duke  oLSomerset  v.  Cookson,  3  P.  Wms.  389 ;  Brown  v.  Gilli- 
land,  3  Dessaus.  541 ;  Phyfe  ».  Wardell,  2  Ed.  Ch.  51 ;  Bowman  v.  Irons,  2 
Bibb  78  ;  Falcke  v.  Gray,  5  Jur.  N.  S.  645 ;  4  Drew  651 ;  Hill  v.  Rocking- 
ham Bank,  44  N.  Hamp.  567.  Of  the  latter,  the  following  cases  will 
furnish  examples :  Sullivan  v.  Tuck,  1  Md.  Ch,  59 ;  Waters  v.  Howard, 
Id.  112;  Finley  v.  Aiken,  1  Grant  Cas.  83.  When  some  of  the  articles 
are  capable  of  compensation  in  damages,  and  some  are  not,  equity  will 


OF    SPECIFIC    PERFORMANCE.  189 

material  to  be  here  considered.  And  our  attention  will 
therefore  be  directed  to  those  requisites  alone  which,  as- 

enforce  performance  as  to  the  whole :  McGowin  r.  Remington,  12  Penn. 
St.  56.  As  a  general  rule,  specific  performance  of  contracts  relating  to 
personal  property  will  not  be  enforced  :  Cowles  r.  Whitman,  10  Conn.  121 ; 
Hoy  V.  Hansborough,  1  Free.  Ch.  533 ;  Cuddie  v.  Rutter,  1  Lead.  Cas.  Eq. 
640.  Though  the  rule  is  otherwise  when  the  chattel  has  not  merely  a 
market  value,  but  also  apretium  affectionis:  Pusey  r.  Pusey,  1  Lead.  Cas. 
Eq.  r,54 ;  Duke  of  Somerset  v.  Cookson,  Id.  655.  The  fact  that  in  an 
agreement  to  convey  land,  a  penalty  for  non-compliance  with  the  contract 
has  been  inserted  expressly  as  "  liquidated  damages,*'  does  not  deprive  the 
party  injured  of  his  right  to  a  specific  performance :  Hull  v.  Sturdivant, 
46  Maine  34;  Hooker  v.  Pynchon,  8  Gray  550;  Moorer  r.  Kopmann,  11 
Rich.  Eq.  225 ;  Daily  v.  Litchfield,  10  Mich.  38.  See  Dowling  ».  Betje- 
mann.  2  Johns,  k  H.  544  ;  Gillis  r.  Hall,  2  Brewster  (Pa.)  342. 

Second.  The  specific  enforcfement  of  the  contract  must  be  practicable  : 
Tobey  v.  The  County  of  Bristol,  3  Story  800 ;  Blackett  v.  Bates,  12  Jur. 
N.  S.  151  ;  also  Phillips  v.  Stauch,  20  Mich.  369 ;  Burke  v.  Seeley, 
46  Mo.  334.  For  instance,  a  contract  to  convey  land  will  not  be  specifi- 
cally enforced  against  a  vendor  who  has  no  title  :  Fitzpatrick  v.  Feather- 
stone,  3  Ala.  40.  Mere  pecuniary  inability,  however,  is  no  defence :  Hopper 
V.  Hopper,  1  Green  (N.  J.)  147 ;  see  also  Love  v.  Cobb,  63  N.  C.  324. 
And  an  agreement  to  devise  lands  will  not  be  specifically  enforced :  Staf- 
ford V.  Bartholomew,  2  Carter  153 ;  though  see  Maddox  v.  Rowe,  23  Geo. 
431  ;  Mundorf  v.  Kilbourne,  4  Md.  463 ;  Whitridge  v.  Parkhurst,  20 
Id.  62 ;  Johnson  v.  Habbell,  2  Stockton,  332 ;  Logan  v.  McGinnis,  12 
Penn.  St.  27.  A  specific  performance  by  husband  and  wife  of  a  contract 
for  the  sale  of  the  wife's  land  will  not  be  decreed  on  a  bill  filed  by  the 
vendee;  Clarke  c.  Reins,  12  Gratt.  98;  though  in  Massachusetts  a  wife 
may,  by  statute,  make  a  binding  contract  for  the  sale  of  her  lands ;  Baker 
».  Hathaway,  5  Allen  103.  Under  this  head,  too,  fall  the  instances  men- 
tioned infra,  p.  81,  where  the  specific  performance  of  a  contract  will  not 
be  decreed  when  the  property  afiected  by  it  has  become  vested,  by  descent 
or  devise,  in  infants  and  persons  from  other  reasons  incapable  of  executing 
a  conveyance.  In  most  of  the  United  States,  however,  there  are  statutes 
providing  for  the  execution  of  decedents'  contracts. 

Third.  The  agreement  must  be  supported  by  a  valuable  consideration. 
See  infra,  p.  78  note. 

Fourth.  The  terms  of  the  contract  must  be  explicit  and  certain :  Dodd  c. 
Seymour,  2  Conn.  473  ;  Rockwell  v.  Lawrence,  2  Halstead  Ch.  190;  Mc- 
Kibbin  t*.  Brown,  1  McCart.  13  j  Aday  v.  Echols,  18  Ala.  353;  Soles  p. 
Hickman,  20  Penn.  St.  180 ;  Allen  v.  Burke,  2  Md.  Ch.  534  ;  Canton 


190       ADAMS's  DOCTRINE  OF  EQUITY. 

suming  the  fact  of  its  legal  validity,  are  essential  to  the 
equity  for  specific  enforcement, 

Co,  V.  The  Railroad  Co.,  21  Md.  395  •,  Maderia  v.  Hopkins,  12  B.  Monr. 
595 ;  Parrish  v.  Koons,  1  Pars.  Eq.  97  ;  Robinson  v.  KetUetas,  4  Edw.  Ch. 
67;  Price  ?;.  Griffith,  1  De  G.,  M.  &  G.  80 ;  Hammer  v.  McEldowney,  46 
Penn.  St.  334 ;  Taylor  v.  Portington,  7  De  G.,  M,  &  G.  328  •,  Parker  v. 
Taswell,  2  De  G.  &  J.  571  •,  Buckmaster  v.  Thompson,  36  N.  Y.  558  -, 
"Waring  v,  Ayres,  40  Id.  357  ;  Jordan  v,  Deaton,  23  Ark.  704  ;  Potts  v. 
Whitehead,  20  N.  J.  Eq.  55 ;  Lobdell  v.  Lobdell,  36  N.  Y.  327  ;  Brewer  v. 
Wilson,  2  Green  (N.  J.)  180;  Mehl  r.  Von  Derwulbeke,  2  Lans.  (N.  Y.) 

267  ;  Foot  v.  Webb,  59  Barb.  (N.  Y.)  38 ;  Munsell  v.  Loree,  21  Mich. 491. 
When  th«  price  to  be  paid  was  to  be  fixed  by  two  persons,  and  a  third 
(their  nominee),  and  they  could  not  agree,  the  court  refused  specific  per- 
formance :  Milnes  v.  Gery,  14  Vesey  400-407  ;  Darbey  v.  Whitaker,  4 
Drew.  134;  Dike  v.  Greene,  4  R.  I.  285.  And  the  same  rule  applies  to 
other  stipulations,  besides  those  in  regard  to  the  price:  Tillett  v.  The 
Charing  Cross  Bridge  Co.,  26  Beav.  419.  Though  see  Gregory  v.  Mighell, 
18  Vesey  328.  An  agreement  to  sell  at  ajuir  valuation  may  be  enforced  : 
Milnes  v.  Gery,  supra;  A^an  Doren  v.  Robinson,  1  Green  (N.  J.)  256. 
Though  an  agreement  is  uncertain  when  first  entered  into,  its  terms  may 
be  settled  by  user:  Laird  v.  The  Birkenhead  Railway  Co.,  John.  501; 
Powell  V.  Thomas,  6  Hare  300.  See,  in  this  connection.  Price  v.  Salusbury, 
32  Beav.  446. 

Fifth.  The  agreement  must  be  mutual.  See  post  82,  note  1.  It  may 
be  added,  lastly,  that  the  specific  performance  of  a  contract  is  a  kind  of 
relief  which  rests  injudicial  discretion,  that  is  a  discretion  not  vacillating 
or  arbitrary,  but  one  which  is  governed  by  sound  and  fixed  rules,  and 
which  is  only  exercised  within  certain  defined  limits.  It  is  a  discretion 
which  is  to  a  considerable  extent  controlled  by  the  circumstances  of  the 
individual  case  :  Rogers  v.  Saunders,  16  Maine  92  ;  Griffith  v.  Frederick 
County  Bank,  6  Gill.  &  J.  424  ;  Pigg  v.  Corder,  12  Leigh  69,  76  ;  Meeker 
V.  Meeker,  16  Conn.  403  ;  Seymour  v.  Delancy,  3  Oow.  445 ;  6  John.  Ch. 
222 ;  King  v.  Morford,  Saxton  274 ;  Anthony  v.  Leftwich,  3  Rand.  238 ; 
Prater  r.  Miller,  3  Hawks.  629  ;  Turner  v.  Clay,  3  Bibb  52 ;  Frisby  v.  Bal- 
lance,  4  Scam.  287  ;  McMurtrie  v.  Bennette,  Harring.  Ch.  124;  Dougherty 
V.  Humston,  2  Blackf.  273;  St.  John  v.  Benedict,  6  John.  Ch.  Ill ;  Hen- 
derson V.  Hays,  2  Watts  148  ;  Perkins  v.  Wright,  3  Har.  &  McHen.  324  ; 
Leigh  V.  Crump,  1  Ired.  Ch.  299 ;  Gould  v.  Womack,  2  Ala.  83  ;  Tobey  v. 
The  County  of  Bristol,  3  Story  800 ;  Dalzell  v.  Crawford,  1  Parsons  45  ; 
Waters  v.  Howard,  8  Gill  262;  Tyson  v.  Watts,  1  Md.  Ch.  13;  Bennett 
V.  Smith,  16  Jurist  421 ;  10  Eng.  L.  &  Eq.  272  ;  Fish  v.  Lightner,  44  Mo. 

268  ;  but  a  discretion,  nevertheless,  which  conforms  itself  to  general  rules 


OF     SPECIFIC    PERFORMANCE.  191 

*The  first  requisite  is  that  there  be  a  valuable    ^  _ 

.  r  781 

consideration,   either  in  the  way  of  benefit   be-    ^      -^ 

stowed,  or  of  disadvantage  sustained,  by  the  party  in 

whose  favor  a  contract  is  to  be  enforced,  (a)  ^     The  neces- 

(a)  2  Steph.  Bl.  113. 

and  settled  principles  :  Ash  v.  Daggy,  6  Ind.  259  ;  Powell  v.  Central  Plank 
Co.,  24  Ala.  441  ;  Stoutenburgh  v.  Tompkins,  1  Stockt.  332;  Chubb  v. 
Peckham,  2  Beas.  207  ;  Haywood  v.  Cope,  25  Beav.  140.  In  the  exercise 
of  this  discretion,  if  the  complainant  has  been  guilty  of  laches  :  Parrish  v. 
Koons,  1  Pars.  Eq.  97 ;  Ins.  Co.  v.  Union  Canal  Co.  Bright.  N.  P.  48 ; 
Miller  r.  Henlan,  51  Penn.  St.  265 ;  or  has  failed  to  perform  his  own  part 
of  the  contract :  Roy  v.  Willink,  4  Sand.  Ch.  525 ;  Slaughter  v.  Harris,  i 
Carter  238  ;  Eastman  v.  Plumer,  46  N.  H.  464 ;  specific  performance  will- 
be  refused. 

^  To  entitle  a  party  in  Chancery  to  the  aid  of  the  court  in  obtaining  a 
specific  performance,  the  instrument  must  be  supported  by  a  valuable  con- 
sideration, or  at  least  by  what  a  Court  of  equity  considers  a  meritorious 
consideration,  as  payment  of  debts,  or  making  provision  for  a  wife  and 
child :  Minturn  v.  Seymour,  4  John.  Ch.  500 ;  Woodcock  v.  Bennett,  1 
Cowen  733  ;  Cabeen  v.  Gordon,  ]  Hill  Ch.  51 5  Shepherd  v.  Shepherd,  2 
Md.  Ch.  144  ;  Vasser  v.  Yasser,  23  Miss.  378  ;  Crompton  ».  Vasser,  19  Ala. 
259  ;  Clarke  v.  Lott,  1 1  111.  105 ;  Banks  v.  May,  3  A.  K.  Marsh.  436 ;  Butman  r. 
Porter,  100  Mass.  337  ;  Tarbell  v.  Tarbell,  10  Allen  278  5  Walrond  v.  Wal- 
rond,  Johns.  18  ;  Allen  v.  Davison,  16  Ind.  416  i  Short  v.  Price,  17  Tex. 
397-403 :  Lear  v.  Chouteau,  23  111.  39 ;  Harkness  v.  Remington,  7  R.  I. 
134.  Where  the  holder  of  shares  of  railway  stock  upon  which  no  deposit 
or  other  sums  have  been  paid,  agrees  to  transfer  them  to  another  who 
agrees  to  receive  them,  and  to  do  all  acts  necessary  to  relieve  the  former 
from  liability  in  respect  to  them,  the  agreement  is  not  void  for  want  of 
consideration  or  mutuality,  but  a  bill  may  be  sustained  against  the  latter 
to  compel  him  to  take  the  stock  :  Cheale  r.  Kenward,  3  De  G.  &  J.  27.  A 
contract  to  borrow  a  sum  of  money  will  not  be  specifically  enforced  : 
Rogers  v.  Challis,  27  Bear.  175  ;  nor  a  contract  to  lend :  Sichel  v.  Mosen- 
thal,  30  Beav.  371-377.  Natural  love  and  afi"ection  has  been  held  to  be  a 
good  consideration  in  equity,  in  Taylor  v.  James,  4  Dessaus.  5;  Mclntire 
V.  Hughes,  4  Bibb  186 ;  Caldwell  v.  Williams,  1  Bailey  Eq.  175 ;  and  see 
Hayes  r.  Kershow,  1  Sandf.  Ch.  261.  But  in  Pennsylvania,  the  opposite 
doctrine  has  been  held :  Kennedy  v.  Ware,  1  Penn.  St.  445 ;  Campbells 
Est,  7  Id.  100,  and  see  Morris  v.  Lewis,  33  Ala.  353 ;  and  this  is  unques- 
tionably the  result  of  the  English  cases.  As  to  assignments  for  the  benefit 
of  creditors,  see  ante  31,  and  note;  Hill  on  Trustees,  4th  Am.  ed.  507  in 
note  ;  Burrill  on  Assignments  280,  306  ;  notes  to  Thomas  v.  Jenks,  1  Am. 
Lead.  Cas.  80 ;  and  see  Hickman  v.  Grimes,  1  A.  K,  Marsh.  87. 


192  ADAMS'S    DOCTRINE     OF    EQUITY. 

sity  for  such  consideration  exists  at  law,  where  the  agree- 
ment is  by  simple  contract  only ;  but  if  it  be  an  agree- 
ment under  seal,  technically  called  a  contract  by  specialty, 
the  solemnity  of  a  deed  is  held  at  law  to  imply  a  consi- 
deration. In  equity,  however,  where  a  special  remedy  is 
sought  in  addition  to  the  ordinary  one  of  pecuniary  re- 
compense, a  valuable  consideration  is  always  requisite, 
and  no  additional  force  is  given  to  the  agreement,  because 
it  is  evidenced  by  an  instrument  under  seal.  If  there  be 
no  consideration,  or  if  the  only  consideration  be  a  moral 
duty  or  natural  affection,  which  are  termed  good,  but  not 
valuable  considerations,  the  Court  of  Chancery  will  not 
interfere ;  e.  g.,  if  a  man  contract  after  marriage,  in  con- 
sideration of  duty  or  affection  towards  his  wife  and  child- 
ren. (3)  If,  on  the  other  hand,  the  contract  be  made 
before  marriage,  it  will  be  supported,  in  consideration  of 
the  subsequent  marriage,  and  may  be  enforced  on  the  ap- 
plication of  any  person  claiming  within  that  consideration.'^ 
It  will  not,  however,  be  enforced  on  the  application  of  a 
party  not  within  the  consideration,  to  whom  a  collateral 
interest  has  been  voluntarily  given, — although,  if  enforced 
at  all,  it  will  be  enforced  throughout,  (c)  The  pecu- 
liar doctrine  of  equity  with  respect  to  meritorious  or 
imperfect  considerations,  which  are  distinguished  from 
valuable  considerations  on  the  one  hand,  and  from  an 
absolute  want  of  consideration  on  the  other,  will  be 
presently  considered.  It  is  sufficient  here  to  remark, 
that  where  a  decree  for  specific  performance  is  asked, 

(&)  Jefferys  v.  Jefferys,  Cr.  &  P.  141 ;  [Moore  v.  Crofton,  3  Jones  &  Lat. 
442.] 

(c)  3  Sug.  V.  &  P.  289;  Davenport  w.  Bishopp,  2  N.  C.  C.  451;  1  Ph. 
698. 

»  Neale  v.  Neales,  9  Wall.  1. 


OF    SPECIFIC    PERFORMANCE.  193 

there  must  be  a  valuable  consideration  to  support  the 
equity.  A  distinction,  however,  must  be  noted  between 
value  and  adequacy.  It  is  essential  that  the  consideration 
be  valuable,  but  it  is  not  essential  *that  it  be  also  r^-rq-i 
adequate.  The  parties  themselves  are  the  best 
judges  of  that ;  and  therefore  mere  inadequacy,  if  not  so 
gross  as  to  prove  fraud  or  imposition,  will  not  warrant  the 
refusal  of  relief,  (c?)^ 

By  parity  of  reasoning,  if  a  benefit  has  been  conferred 
as  the  consideration  for  any  act,  a  party  who  knowingly 
accepts  that  benefit,  though  he  may  not  be  bound  by  an 
actual  contract,  or  by  a  condition  of  performance  annexed 
to  the  gift,  is  compellable  in  equity  to  do  the  act.(«)  And 
in  like  manner  it  is  a  principle  of  the  common  law,  that 

[d)  1  Sug.  V.  &  P.  440 ;  Borell  v.  Dann,  2  Hare  440,  450 ;  Bower  v. 
Cooper,  Id.  408. 

(c)  Edwards  v.  Grand  Junction  Railway,  1  M.  &  C.  650;  Green  v.  Green, 
19  Ves.  665 ;  2  Merv.  86 ;  Gretton  v.  Haward,  1  Sw.  409,  427. 

^  Mere  inadequacy  of  price  is  not^«r  se  sufficient  to  set  aside  a  transac- 
tion :  Park  v.  Johnson,  4  Allen  259  ;  yet  where  it  is  so  great  as  to  give  to 
the  contract  the  character  of  unreasonableness  and  hardship,  the  Court 
may  be  induced  to  stay  the  exercise  of  its  discretionary  power,  in  enforcing 
the  specific  performance  of  a  contract  for  the  sale  of  land,  and  leave  the 
party  to  seek  his  compensation  in  damages  at  law :  Osgood  et  al.  v.  Frank- 
lin et  al.,  2  John.  Ch.  23,  s.  c.  on  appeal,  14  John.  527  ;  Howard  r.  Edgell, 
17  Verm.  9  ;  Shepherd  v.  Bevin,  9  Gill  32  ;  Erwin  v.  Parham,  12  How.  U. 
S.  197 ;  Harrison  v.  Town,  17  Mo.  237 ;  Powers  v.  Hale,  5  Foster  145; 
and  so  as  to  personalty :  Falcke  v.  Gray,  4  Drew.  651.  See  also  Seymour 
V.  Delancy,  3  Cowen  445 ;  6  John,  Ch.  222 ;  Garnett  v.  Macon,  2  Brock. 
185;  Rodman  r,  Zilley,  Saxton  320;  White  v.  Thompson,  1  Dev.  &  Bat. 
Ch.  493  ;  Fripp  v.  Fripp,  Rice  Ch.  84;  Bean  v.  Valle,  2  Mo.  126  ;  David- 
son V.  Little,  22  Penn.  St  245  ;  Vick  r.  Troy  &  Boston  R.  R.  21  Barb.  381. 
If  the  inadequacy  be  very  gross  and  manifest,  so  as  has  been  said  to  "  shock 
the  conscience,"  the  court  will  infer  fraud  or  imposition,  and,  it  seems, 
give  active  relief:  Butler  v.  Haskell,  4  Dessaus.  687  ;  Wright  v.  Wilson,  2 
Yerg.  294 ;  Barnett  v.  Spratt,  4  Ired.  Eq.  171 ;  Deaderick  v.  Watkins,  8 
Humph.  520 :  see,  however,  Erwin  ».  Parham,  12  How.  U.  S.  197. 
13 


194  ADAMS's    DOCTRINE    OF    EQUITY. 

if  a  service  has  been  rendered  and  accepted  by  any  person, 
it  will  be  implied,  in  the  absence  of  a  specific  contract, 
that  he  shall  pay  a^  much  as  it  is  reasonably  worth.  (/) 

The  necessity  for  valuable  consideration  is  confined,  in 
equity,  as  well  as  at  law,  to  promises  which  rest  in  fieri} 
If  the  promise  has  been  already  executed,  whether  at 
law  by  transfer  of  a  legal  ownership,  or  in  equity  by  the 
creation  of  a  final  trust,  the  consideration  on  which  it  was 
made  is  immaterial.  And  it  is  therefore  frequently  con- 
tended, that  effect  should  be  given  to  a  voluntary  promise, 
on  the  ground  that  the  party  making  it,  though  he  has  not 
absolutely  perfected  his  gift,  has  gone  sufficiently  far  to 
constitute  himself  a  trustee  for  the  claimant.  The  exact 
line  of  demarcation,  where  the  contract  ceases  to  be  an 
executory  agreement,  and  becomes  a  perfected  trust  in 
equity,  is  often  difficult  to  distinguish;  but  the  principle 
itself  is  sufficiently  clear.  If  the  donor  has  perfected  his 
gift  in  the  way  which  he  intended,  so  that  there  is  nothing 
left  for  him  to  do,  and  nothing  which  he  has  authority  to 
countermand,  the  donee's  right  is  enforceable  as  a  trust, 
and  the  consideration  is  immaterial.  Such,  for  instance, 
is  the  case  where  an  instrument  of  gift  has  been  fully 
r*801  ®^®c^t®<^j  ^although  retained  in  the  donor's  posses- 
sion; (^)^  where  the  legal  ownership  of  a  right  en- 

(/)  2  Steph.  Bl.  186. 

{^g)  Coningham  v.  Plunkett,  2  N.  C.  C.  245  ;  Hughes  v.  Stubbs,  1  Hare 
476 ;  Exton  v.  Scott,  6  Sim.  31 ;  Fletcher  v.  Fletcher,  4  Hare  67. 

'  Equity  will  aid  in  enforcing  an  agreement  executed,  though  voluntarj, 
dliter  if  it  be  executory :  Read  v.  Long,  4  Yerg.  68 ;  Wyche  v.  Green,  16 
Geo.  49 ;  Morris  v.  Lewis,  33  Ala.  53.  But,  in  Boze  v.  Davis,  14  Texas 
331,  it  was  held  that  equity  will  not  enforce  a  voluntary  agreement  to 
convey  land,  although  the  grantee  was  put  in  possession  and  made  im- 
provements ;  but,  if  the  bill  is  properly  drawn,  he  may  obtain  compensa- 
tion for  the  labor  he  expended  and  the  improvements  he  made  :  Pinckard 
V.  Pinckard,  23  Ala.  649,  ace. 

«  Way's  Settlement,  10  Jur.  N.  S.  1166. 


OF    SPECIFIC    PERFORMANCE.  195 

forceable  at  law  has  been  completely  vested  in  a  trustee 
for  the  claimant;  (/z)  where  the  legal  estate  is  already  in  a 
trustee,  and  the  equitable  ownership,  retaining  the  old 
trustee,  has  been  completely  assigned  to  the  claimant,  or 
a  trustee  for  him;p)  where  a  chose  in  action  which  is 
transferable  in  equity  alone,  has  been  transferred  by  a 
complete  equitable  assignment ;  {Jc)  or  where,  by  a  formal 
declaration  of  trust,  which  purports  to  be  and  is  a  com- 
plete transaction,  the  donor  has  assumed  the  character  of 
a  trustee.  (/)  If,  on  the  contrary,  the  transaction  is  in- 
complete, and  its  final  completion  is  asked  in  equity,  the 
Court  will  not  interpose  to  perfect  the  author's  liablity, 
without  first  inquiring  into  the  origin  of  the  claim,  and 
the  nature  of  the  consideration  given,  (m)^ 

(A)  Fletcher  v.  Fletcher,  4  Hare  67. 

(i)  CoUinson  v.  Pattrick,  2  K.  123  ;  Sloan  v.  Codogan,  3  Sug.  V.  &  P. 
App.  66  ;  Beatson  v,  Beatson,  12  Sim.  281. 

[k)  Ex  parte  Pye  &  Dubois,  18  Ves.  140  ;  McFadden  v.  Jenkyns,  1  Hare 
458  ;  1  Ph.  153  ;  Fortescue  v.  Barnett,  3  M.  &  K.  36  ;  Edwards  v.  Jones,  1 
M.  &  C.  226. 

{I)  Meek  v.  Kettlewell,  1  Hare  464 ;  1  Ph.  342. 

\m)  Edwards  v.  Jones,  1  M.  &  C.  226  ;  Dillon  v.  Coppin,  4  Id.  647 ; 
Meek  v.  Kettlewell,  1  Hare  464;  1  Ph.  342;  Fletcher  v.  Fletcher,  4  Hare 
67;  Ward  v.  Audland,  8  Bea.  201. 

^  By  the  recent  case  of  Kekewich  v.  Manning,  1  De  G.,  M.  &  Gord.  176, 
it  is  now  established  in  England,  contrary  to  several  previous  decisions, 
that  a  voluntary  assignment  of  an  equitable  or  reversionary  interest,  or  of 
a  chose  in  action,  will  be  enforced  in  equity,  where  the  assignor  has  done 
all  in  his  power  to  make  the  transaction  complete.  The  fact  that  the  legal 
title  cannot  pass  in  such  case,  is  held  to  be  immaterial :  s.  p.  Voyle  v. 
Hughes,  18  Jur.  341 ;  2  Sm.  &  Giffard  18.  But  the  rule  still  remains  the 
same  where  the  assignor  has  not  done  all  in  his  power,  and  which  the  na- 
ture of  the  property  is  capable  of,  as  a  transfer  of  stock,  where  it  is  assigned  : 
Beech  v.  Keep,  18  Bea.  285;  Bridge  v.  Bridge,  16  Id.  315;  Hill  v.  The 
Rockingham  Bank,  44  N.  II.  567  ;  see  Milroy  v.  Lord,  8  Jur.  N.  S.  806  ; 
and  the  classification  of  the  cases  on  this  subject  in  Hill  on  Trustees  139, 
142,  notes,  4th  Am.  ed. 


196  ADAMS's    DOCTRINE    OF    EQUITY. 

The  second  requisite  is,  that  the  mutual  enforcement  of 
the  contract  in  specie  be  practicable,  i.  e.,  that  the  contract 
be  one  which  the  defendant  can  fulfil;  and  the  fulfilment 
of  which  on  his  part,  and  also  on  the  part  of  the  plaintiff, 
can  be  judicially  secured. 

If  the  defendant  cannot  fulfil  the  contract  which  he 
has  made,  it  may  be  a  ground  for  exempting  the  plaintiff 
from  costs  on  the  dismissal  of  his  bill,  but  it  cannot  autho- 
rize the  Court  to  decree  an  impossibility.  Such,  for  ex- 
ample, is  the  case,  where  the  vendor  of  property  has  no 
estate,  or  only  a  limited  estate  therein  ;(w)  where  he  holds 
r^o-i-j  it  as  a  *trustee  without  authority  to  sell;(o)  or 
where,  being  the  absolute  owner  at  the  time  of  his 
contract,  he  subsequently  conveys  to  a  stranger  who  is 
ignorant  of  the  prior  sale,  and  is  therefore  bound  by  no 
equity  to  give  it  effect.  In  this  last  case,  the  vendor's 
misconduct  may  be  a  ground  for  charging  hiin  with  costs, 
but  a  decree  for  performance  of  the  contract  is  obviously 
impossible,  and  there  is  no  jurisdiction  in  equity  to  give 
damages  for  the  breach.  (^) 

A  similar  obstacle  is  sometimes  occasioned,  where,  after 
a  contract  has  been  made,  the  property  which  it  affects 
descends  or  is  devised  to  persons,  who  by  reason  of  infancy 
or  of  the  limited  nature  of  their  estate,  are  unable  to  make 
the  requisite  conveyance.^     The  effect  of  an  incapacity  of 

(n)  Maiden  v.  Fyson,  9  Bea.  347. 
(o)  Mortlock  V.  Buller,  10  Ves.  292. 

{p)  Todd  V.  Gee,  17  Ves,  273  ;  Jenkins  v.  Parkinson,  2  M.  &  E.  5  ;  Sains- 
bury  V.  Jones,  2  Bea.  462 ;  Nelson  v.  Bridges,  Id.  239. 

*  The  contract  of  the  ancestor  was  decreed  to  be  performed  by  the  infant 
heir-at-law,  who  was  allowed  six  months  after  coming  of  age  to  show 
cause :  Glaze  v.  Drayton,  1  Dessaus.  109  ;  W^ilkinson  v.  Wilkinson,  a  minor, 
1  Id.  201.  The  subject-matter  must,  however,  have  been  fixed  :  Ferris  v. 
Irving,  28  Cal.  645.    Where  specific  performance  of  a  contract  would  be 


OF    SPECIFIC     PERFORMANCE.  197 

this  kind  is  not  to  oust  the  jurisdiction  of  equity,  but  to 
delay  its  exercise  until  the  requisite  capacity  is  attained. 
The  inconvenience,  however,  has  been  remedied  by  a 
recent  statute,  and  it  is  enacted  that  in  such  cases,  after 
a  decree  has  been  made  for  specific  performance,  the  Court 
may  direct  a  conveyance  in  the  same  manner  as  in  the 
case  of  an  incapacitated  trustee.  ($')  A  corresponding 
authority  is  given  by  another  statute,  where  a  contract- 
ing party  becomes  lunatic  after  a  contract  has  been 
made.(r) 

If  the  defendant,  though  able  to  fulfil  his  contract, 
cannot  be  judicially  compelled  to  do  so,  the  jurisdiction 
of  equity  is  equally  at  an  end.  Such,  for  example,  is 
the  case  where  a  tradesman  has  contracted  to  sell  the 
goodwill  of  a  business,  unconnected  with  any  specific  pro- 
perty, or  where  an  actor  has  engaged  to  perform  at  a  par- 
ticular theatre  ;^  for  the  Court  is  incompetent  to  tell  the 

(2)  1  Wm.  4,  c.  60,  88.  16  &  17.  (r)  1  Wm.  4,  c  65,  s.  27. 

decreed  between  the  original  parties  to  a  contract,  it  will  be  decreed  be- 
tween all  claiming  under  them,  if  there  are  no  intervening  equities  con- 
trolling the  case:  Hays  v.  Hall,  4  Porter  374  ;  MaMorris  v.  Crawford,  15 
Ala.  271 ;  Brewer  c.  Brewer,  19  Id.  481 ;  Nesbit  v.  Moore,  9  B,  Monr. 
508  ;  Tiernan  v.  Roland,  15  Penn.  St.  429  5  Guard  v.  Bradley,  7  Ind.  600  ; 
Hill  V.  Ressegieu,  17  Barb.  (N.  Y.)  162;  Moore  v.  Burrows,  34  Id.  173; 
Hunter  v.  Bales,  24  Ind.  299  ;  Laverty  ».  Moore,  33  N.  Y.  658  ;  see  Van 
Doren  v.  Robinson,  1  Green  (N.  J.)  256. 

^  Hamblin  r.  Dinneford,  2  Edw.  Ch.  529.  A  court  will  sometimes  re- 
strain the  infringement  of  negative  covenants  though  it  cannot  specifically 
enforce  the  whole  contract :  see  Lumley  r.  Wagner,  1  De  G.,  M.  &  G.  604 ; 
De  Mattos  v.  Gibson,  4  De  G.  &  J.  276 ;  also  Peto  v.  The  Railroad  Co.,  1 
Hem.  &  M.  468 ;  post  207  note.  A  contract  for  personal  services  of  an 
uncertain  duration  will  not  be  enforced:  Firth  v.  Ridley,  33  Bea.  516,  ap- 
proved by  the  Lord  Justices  June  30,  1864  ;  or  a  contract  for  the  perform- 
ance of  a  continuous  series  of  duties,  the  non-performance  of  which  can 
only  be  punished  by  repeated  attachments :  Blackett  v.  Bates,  L.  R.  1  Ch. 
App.  117  ;  though  see  Furman  v.  Clark,  3  Stockt.  306.     The  court  will  not 


198  ADAMs's    DOCTRINE    OF    EQUITY. 

actor  what  parts  he  shall  perform,  or  how  he  shall  perform 
them ;  or  to  tell  the  tradesman  how  he  shall  induce  his 
r*82T  customers  to  employ  his  *asignees.  (s)  Such  again 
is  a  contract  for  entering  into  a  partnership,  where 
no  term  is  fixed  for  its  duration,  and  where  the  decree 
might  therefore  be  nullified  by  an  immediate  dissolution; 
or  for  granting  a  lease,  where  the  term  contracted  for 
has  expired  before  the  hearing  of  the  cause.  It  seems, 
however,  that  if  special  cause  be  shown,  the  Court  may 
insist  on  such  a  lease  being  executed ;  and  dated  as  of 
the  time  when  it  ought  to  have  been  made,  and  may  com- 
pel the  lessor  to  admit  such  date  as  the  true  one  in  any 
proceeding  at  law.(^) 

If,  when  the  cause  comes  on  for  hearing,  the  plaintiff's 
part  of  the  agreement  has  not  been  performed,  and  its 
fulfilment  by  him  cannot  be  secured,  there  is  a  want  of 
mutuality  between  the  parties.^     And  such  want  of  mu- 

(s)  Coslake  v.  Till,  1  Russ.  376 ;  Kemble  v.  Kean,  6  Sim.  333 ;  Diet- 
richsen  v.  Cabburn,  2  Ph.  52;  [Fitzpatrick  v.  Nowlan,  1  Irish  L.  &  Eq.  N. 
S.  671.] 

{t)  Hercy  v.  Birch,  9  Ves.  357  ;  Nesbitt  v.  Meyer,  1  Sw.  223. 

specifically  enforce  a  contract  to  run  a  railroad  :  Port  Clinton  R.  R.  Co.  v. 
The  Cleveland  &  Toledo  R.  R.  Co.,  13  Ohio  N.  S.  544.  Specific  performance 
of  a  contract  to  build  a  railroad  will  not  be  decreed.  Such  a  work  requires 
too  long  a  time  for  its  performance  to  be  conducted  under  orders  and  de- 
crees of  chancery  :  Ross  v.  Union  Pacific  R.  R.,  1  Woolw.  26  ;  Fallon  v.  R. 
R.  Co.,  1  Dill.  121. 

^  The  contractor  agreement  sought  to  be  enforced,  must  be  mutual,  and 
the  tie  reciprocal,  or  a  Court  of  Equity  will  not  enforce  a  performance  : 
McMurtrie  v.  Bennett,  Harring.  Ch.  124 ;  Hawley  v.  Sheldon,  Id.  420  ; 
Hutcheson  v.  McNutt,  1  Ham.  14 ;  Cabeen  v.  Gordon,  1  Hill  Ch.  51 ; 
Benedicts.  Lynch,  1  John.  Ch.  370;  Ohio  v.  Baum,  6  Ham  383;  Tyson 
V.  Watts,  1  Md.  Ch.  13;  Bronson  v.  Cahill,  4  McLean  19;  Southern  Life 
Ins.  Co.  V.  Cole,  4  Florida  359 ;  Duvall  v.  Myers,  2  Md.  Ch.  401 ;  Stout- 
enbergh  v.  Tompkins,  1  Stock.  332;  Hoen  v.  Simmons,  1  Cal.  119;  Cor- 
son V.  Mulvany,  49  Penn.  St.  88 ;  Hawralty  v.  Warren,  3  Green  (N.  J.) 


OF     SPECIFIC    PERFORMANCE.  199 

tuality,  though  it  may  not  in  all  cases  absolutely  exclude 
the  jurisdiction,  is  a  material  ingredient  in  restraining  its 
exercise.  For  example,  where  an  agreement  had  been 
made  between  the  plaintiff  and  the  defendant,  that  the 
plaintiff  should  supply  certain  acids  for  the  defendant,  and 
that  the  defendant  should  purchase  them  from  the  plain- 
tiff alone,  the  Court  refused  to  restrain  the  defendant 
from  purchasing  elsewhere,  because  it  could  not  compel 
the  plaintiff  to  furnish  all  the  acids  which  might  be  re- 
quired. And  it  has  been  held  on  the  same  principle,  that 
an  infant  cannot  sustain  a  suit  for  specific  performance  of 
a  contract  made  by  him,  for,  if  a  decree  were  made  in  his 
favor,  it  would  be  impossible  to  compel  him  to  execute 
that  decree,  (m) 

The  third  requisite  is,  that  an  enforcement  in  sjjecie  be 
necessary,  i.  <?.,  it  must  be  really  important  to  the  plain- 
tiff, and  not  oppressive  on  the  defendant. 

*It  must  be  really  important  to  the  plaintiff;  for    ri^Qo-\ 
the  equitable  remedy  is  not  concurrent  with  the 
legal   one,  but  supplemental  to   it,  and  will  not  there- 

[u]  Hill  i\  Crolls,  2  Ph.  60 ;  Fight  v.  Bolland,  4  Russ.  298  ;  Bozon  v. 
Farlow,  1  Meriv.  409  ;  Pickering  r.  Bishop  of  Ely,  2  N.  C.  C.  249 ;  Salis- 
bury r.  Hatcher,  2  N.  C.  C.  54 ;  Dietrichsen  v.  Cabburn,  2  Ph.  52 ;  Rolfe 
».  Rolfe,  15  Sim.  88  ;  [Hargrave  v.  Hargrave,  12  Beav.  408.] 

Eq.  124 ;  Jones  v.  Noble,  3  Bush  (Ky.)  694 ;  Marble  Co.  v.  Ripley,  10 
Wall.  339.  Thus,  where  by  the  terms  of  sale,  title  is  to  be  absolute,  and 
purchase-money  to  be  paid  within  a  certain  period,  or  a  re-sale,  it  seems 
specific  performance  will  not  be  decreed  in  favor  of  the  vendor,  on  a  bill 
filed  after  the  expiration  of  that  period :  Bodine  v.  Glading,  21  Penn.  St. 
54 :  see,  however,  Roberts  v.  Donny,  3  De  G.,  M.  &  G.  284.  As  to  the 
necessity  of  performance  and  diligence  on  the  part  of  the  complainant: 
see  Thorp  v.  Pettit,  1  Gr.  {N.  J.)  448  ;  Ely  r.  McKay,  12  Allen  (Mass.) 
323;  Gentry  tJ.  Rogers,  40  Ala.  442;  Gale  v.  Archer,  42  Barb.  (N.  Y.)320. 
A  tender  of  performance  need  not  be  made  when  it  would  be  wholly 
nugatory :  Kerr  r.  Purdy,  50  Barb.  (N.  Y.)  24. 


200  ADAMS's    DOCTRINE    OF    EQUITY. 

fore  be  substituted  for  such  legal  remedy,  unless  a  par- 
ticular necessity  be  shown.^  In  accordance  with  this 
principle,  specific  performance  may  be  enforced  of  con- 
tracts for  the  sale  of  land,  of  shares  in  a  public  com- 
pany, (v)  or  of  a  life  annuity ;  {w)  for  refraining  from  specific 
injurious  acts,  and  generally  for  any  purpose,  where  the 
specific  thing  or  act  contracted  for,  and  not  mere  pecuni- 
ary compensation,  is  the  redress  practically  required.  (:r)^ 
On  the  other  hand,  it  will  not  ordinarily  be  decreed  on  a 
contract  for  the  sale  of  stock  or  goods ;  because  with  a 
sum  equal  to  the  market  price,  the  plaintiff  may  buy 
other  stock  or  goods  of  the  same  description,  (y)^  On  the 
same  principle,  a  covenant  to  repair  a  house,  or  to  put 
lands  into  a  particular  state  of  cultivation,  will  not  be  en- 
forced in  equity ;  for  the  matter  really  in  controversy  is 
nothing  more  than  the  cost  of  employing  some  other  per- 

(»)  Duncuft  V.  Albrecht,  12  Sim.  189  ;  Colombine  v.  Chichester,  2  Ph. 
27. 

(«j)  Withy  V.  Cottle,  1  S.  &  S.  174;  Clifford  v.  Turrell,  1  N.  C.  C.  138. 

(a)  Adderley  v.  Dixon,  1  S.  &  S.  610. 

(y)  Cud  V.  Rutter,  1  P.  W.  570 ;  Doloret  ».  Rothschild,  1  S.  &  S.  590 ; 
Adderley  v.  Dixon,  1  S.  &  S.  610. 

'  Mead  v.  Camfield,  3  Stockt.  38. 

*  An  agreement  between  a  creditor  and  a  third  person,  founded  on  a 
valuable  consideration,  to  compromise  the  claim  of  the  former  against  his 
debtor,  will  be  specifically  enforced  by  a  Court  of  equity  :  Phillips  v.  Ber- 
ger,  8  Barb.  S.  C.  527. 

Specific  performance  of  an  agreement  for  insurance  may  be  decreed  even 
after  a  loss:  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  U.  S.  390;  Car- 
penter w.Mutual  Safety  Ins.  Co.,  4  Sandf.  Ch.  408  ;  see  Neville  v.  Mer- 
chants' Ins.  Co.,  19  Ohio  452 ;  and  the  Court,  having  obtained  jurisdiction, 
may  then  go  on  and  give  the  suitable  relief:  Tayloe  v.  Ins.  Co.,  ut  sup. 

^  Maulden  v.  Armistead,  18  Ala.  500  ;  and  see  ante,  p.  77,  note.  It  is 
not  by  itself  a  sufficient  ground  of  demurrer,  that  a  bill  seeks  specific  per- 
formance of  a  contract  with  regard  to  personal  property :  Carpenter  ». 
Mutual  Safety  Ins.  Co.,  4  Sandf.  Ch.  408.  See  Cheales  v.  Kenward,  3  De 
G.  &  J.  27  ;  stated  ante,  note  to  p.  80. 


OF    SPECIFIC    PERFORMANCE.  201 

son  to  do  the  work.  In  the  case  of  a  contract  for  build- 
ing a  house,  and  not  for  repairing  only,  the  application  of 
the  principle  is  doubtful;  but  if  the  building  be  one  which 
the  defendant  only  can  erect,  and  the  non-erection  of 
which  cannot  be  compensated  by  money,  the  jurisdiction 
is  clear,  and  the  Court  will  see  that  the  work  is  properly 
dojie.{sy 

It  must  not  be  oppressive  on  the  defendant.  If  its 
importance  to  the  plaintiff  be  shown,  a  material  step  is 
gained  towards  obtaining  a  decree.  But  the  establishment 
of  this  fact  is  not  conclusive ;  for  however  important 
specific  performance  may  be  to  the  plaintiff,  yet  he  has  at 
all  events  another  remedy  by  damages  at  law ;  and  it  is 
therefore  open  to  the  defendant  to  contend  that  a  wrong 
*would  be  inflicted  on  him  by  going  beyond  the  rncci-] 
ordinary  remedy,  greater  than  would  be  inflicted 
on  the  plaintiff  by  refusing  to  interpose.  («)^  Specific 
performance  wiU  accordingly  be  refused,  if  there  has  been 
misrepresentation  by  the  plaintiff  on  a  material  point, 
although  it  may  not  be  sufficient  to  invalidate  the  con- 

(z)  Errington  v.  Aynesly,  2  B.  C.  C.  342 ;  Flint  v.  Brandon,  8  Ves.  164; 
Storer  v.  Great  Western  Railway,  2  N.  C.  C.  48.  [See  Birchett».  Boiling, 
5  Munf.  442.] 

(a)  Wedgwood  ».  Adams,  6  Bea.  600. 

^  But  an  agreement  to  build  a  house  of  a  given  value,  and  according  to 
a  plan  to  be  agreed  upon,  cannot  be  specifically  enforced,  when  neither 
plan  nor  specifications  have  been  under  the  consideration  of  the  parties  : 
Brace  v.  Wehnert,  27  L.  J.  Ch.572;  4  Jur.  N.  S.  549.  Specific  performance 
will  be  decreed  of  land,  though  it  appear  that  it  is  valuable  only  on  ac- 
count of  the  timber  upon  it ;  equity  acting  in  such  case  merely  on  the 
ground  of  the  subject  being  land  :  Kitchon  v.  Herring,  7  Ired.  Eq.  190.  In 
the  recent  case  of  Clayton  v.  lUingsworth,  10  Hare  451,  however,  specifie 
performance  of  an  agreement  for  a  mere  tenancy  from  year  to  year,  was 
refused,  because  the  breach  was  susceptible  of  compensation  by  damages. 

2  Webb  V.  Direc.  London  &  Portsmouth  R.  R.  Co.,  1  De  G.,  M.  &  Gord. 
52  ;  Bowles  v.  Woodson,  6  Gratt.  (Va.)  78. 


202  'adams's  doctrine   of  equity. 

tract ;  (b)  if  he  has  induced  the  defendant  to  execute  a 
written  agreement,  on  the  faith  of  his  verbal  promise  that 
it  shall  be  subsequently  altered  ;(c)  or  if  after  making  a 
contract  in  writing,  he  has  put  an  end  to  it  by  parol  waiver,^ 
although  it  is  doubtful  whether  such  a  waiver  would  be 
good  at  law  in  respect  of  a  contract  affected  by  the  Statute 
of  Frauds.  (6?)  2 

(6)  Cadman  v.  Horner,  18  Yes.  10 ;  Clermont  v.  Tasburgh,  1  J.  &  W. 
112;  Brealey  v.  Collins,  You.  317  ;  1  Sug.  Y.  &  P.  338  ;  Nelthorper.  Hol- 
gate,  1  Coll.  203. 

(c)  Clarke  v.  Grant,  14  Yes.  519;  Omerod  v.  Hardman,  5  Id.  722; 
Att.-Gen.  V.  Jackson,  5  Hare  366. 

[d)  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58  ;  Robinson  v.  Page,  3  Russ.  114, 
119  ;  1  Sug.  Y.  &  P.  ciii,  s.  9. 

1  HuflFman  v.  Hummer,  3  Green  (N.  J.)  83  ;  Ryno  v.  Darby,  20  N.  J. 
Eq.  231. 

^  Where  a  contract  is  hard,  and  destitute  of  all  equity,  the  court  will 
leave  the  parties  to  their  remedy  at  law  ;  and  if  such  remedy  has  been  lost 
by  negligence,  they  must  abide  the  consequences  :  King  v.  Hamilton,  4 
Pet.  311  ;  Western  Railroad  Corporation  v.  Babcock,  6  Met.  346  ;  Perkins 
V.  Wright,  3  Har.  &  McHen.  324  ;  Leigh  v.  Crump,  1  Ired.  Gh.  299  ;  Hall 
V.  Ross,  3  Heyw.  200 ;  Rice  v.  Rawlings,  Meigs  496 ;  Eastland  v.  Yanarsdel, 
3  Bibb  274  ;  Wingart  v.  Fry,  Wright  105 ;  Edwards  v.  Handley,  Hardin 
602  ;  Cannaday  v.  Shepard,  2  Jones  Eq.  224  ;  Bowen  v.  Waters,  2  Paine 
C.  C.  1.  And  when  one  of  the  parties  to  a  contract  has  been  guilty  of 
unfair  conduct,  in  relation  to  the  contract  of  which  he  seeks  the  specific 
performance,  his  bill  will  be  dismissed,  and  he  will  be  left  to  his  legal 
remedy :  Thompson  v.  Tod,  Pet.  C.  C.  380 ;  Frisby  v.  Ballance,  4  Scam. 
287  ;  Berry  v.  Cox,  8  Gill  466.  So  where  the  contract  is  unreasonable : 
McWhorter  v.  McMahan,  1  Clarke  400.  And  where  it  is  entered  into  for 
the  purpose  of  defrauding  a  creditor  :  St.  John  v.  Benedict,  6  John.  Ch. 
111.  Or  was  not  originally  honest  and  fair  :  Carberry  v.  Tennehill,  1  Har. 
&  J.  224',  Harris  v.  Smith,  2  Cold.  (Tenn.)  306  ;  Cufi^  v.  Borland,  55  Barb. 
(N.  Y.)  481 ;  McClellan  v.  Darrah,  50  HI.  249;  Wells  i'.  MiUett,  23  Wis. 
64.  But  a  mere  increase  of  the  value  of  the  land  subsequent  to  the  con- 
tract, will  not  be  a  ground  for  refusing  specific  performance :  Young  v. 
Wright,  4  Wis.  144.  The  intoxication  of  a  purchaser  at  the  time  of  sale, 
will  not  be  ground  for  refusing  to  enforce  specific  performance  of  the  con- 
tract against  him,  unless  it  appear  that  his  intoxication  was  produced  or 
procured  by  the  vendor,  or  that  undue  advantage  was  taken  of  it :  Maxwell 


OF     SPECIFIC    PERFORMANCE.  203 

In  accordance  with  the  same  principle,  it  is  held  that 
where  specific  performance  is  asked  of  a  contract  for  the 
purchase  of  real  estate,  the  defendant  may  have  the  title 
examined  by  a  master;^  so  that  its  validity  may  be  sifted 
in  a  way  which  w^ould  not  be  possible  on  a  mere  abstract, 
authenticated  as  the  vendor  thinks  proper,  and  that,  in 
consideration  of  the  relief  sought  beyond  the  laAv,  he  may 
have  an  assurance  about  the  nature  of  his  title,  such  as 
he  cannot  have  elsewhere.  (^)  If  the  investigation  shows 
a  reasonably  clear  and  marketable  title,  specific  perform- 
ance will  be  compelled.  But  if  there  be  a  rational  doubt 
on  its  validit}",  the  Court,  though  it  may  be  of  opinion 
that  the  title  is  good,  will  not  compel  the  purchaser's  ac- 
ceptance, but  will  leave  the  parties  to  law.(/)^ 

(e)  Jenkins  v.  Hiles,  6  Ves.  646,  653. 

(/)  Stapylton  v.  Scott,  16  Ves.  272;  Jervoise  v.  Dnke  of  Northnmber- 
land,  IJ.  &  W.  539,  549. 

V.  Pittenger,  2  Green  Ch.  156;  Rodman  ».  Zilley,  Saxton320  ;  Whitesides 
V.  Greenlee,  2  Dev.  Ch.  152  ;  Shaw  v.  Thackray,  17  Jur.  1045  ;  1  Sm.  & 
Giflf.  537  ;  Morrison  v.  McLeod,  2  Dev.  &  Batt.  Eq.  221 ;  Harbison  v.  Le- 
mon, 3  Blackf.  51  ;  Belcher  v.  Belcher,  10  Yerg.  121 ;  Crane  v.  Conklin, 
Saxt.  Ch.  346  ;  Calloway  v.  Witherspoon,  5  Ired.  Eq.  128  ;  contra,  Prentice 
V.  Achorn,  2  Paige  30. 

^  Where  the  court  is  satisfied  on  the  hearing  that  there  can  be  no  fuller 
investigation  of  the  title,  and  that  all  the  facts  are  before  the  court,  and  is 
satisfied  that  objections  exist  to  the  title,  which  from  their  nature  cannot 
be  removed,  it  will  not  direct  a  reference  to  a  master  :  Dominick  v.  Michael, 
4  Sandf.  S.  C.  374. 

"^  Butler  w.  O'Hear,  1  Dessaus.  382;  Longworth  ».  Taylor,  1  McLean 
395  ;  Watts  V.  Waddle,  6  Pet.  389 ;  Bates  v.  Delavan,  5  Paige  Ch.  299 ; 
Winne  v.  Reynolds,  6  Id.  407  ;  Dutch  Church  v.  Mott,  7  Id.  77 ;  Gans  v. 
Renshaw,  2  Barr  34  ;  Fitzpatrick  v.  Featberstone,  3  Ala.  40 ;  Beckwith  v. 
Kouns,  6  B.  Monr.  222  ;  Hepburn  v.  Auld,  5  Cranch  262,  275;  Owings  v. 
Baldwin,  8  Gill  337 ;  Thomjison  v.  Dulles,  5  Rich.  Eq.  370  ;  St.  Mary's 
Church  V.  Stockton,  4  Halst.  Ch,  (N.  J.)  520;  Laurens  v.  Lucas,  6  Rich. 
Eq.  217  ;  Lowry  v.  Muldrow,  8  Id.  241 ;  Chambers  v.  Tulane,  1  Stockt. 
(N.  J.)  146  ;  Freetly  v.  Barnhart,  51  Penn.  St.  279  ;  Speakman  v.  Fore- 
paugh,  44  Id.  363  ;  Doeblers  Appeal,  64  Id.  9  ;  Littlefield  v.  Tinsley,  26 


204       ADAMS'S  DOCTRINE  OF  EQUITY. 

Specific  performance  may  be  refused  where  the  defend- 
ant has  by  mistake,  not  originating  in  mere  carelessness, 

Tex.  353  -,  Griffin  v.  Cunningham,  19  Gratt.  (Va.)  571  ;  Swain  v.  Fidelity 
Ins.  Co.,  54  Penn.  St.  455  ;  Linkhouse  v.  Cooper,  2  W.  Va.  67.  For  a  dis- 
cussion of  doubtful  title,  see  Mullings  v.  Trinder,  10  Eq.  Cas.  L.  R.  449. 
The  cases  in  which  courts  of  equity  have  refused  their  aid  to  the  vendor, 
where  they  have  considered  his  title  good,  though  disputable,  are  cases  of 
real  and  serious  difficulty.  Omissions  in  the  judicial  process  through  which 
the  title  passed,  which  omissions  could  be  supplied  by  amendment,  by  the 
court  in  which  the  proceedings  were  had,  will  not  be  considered  as  suf- 
ficient :  Dalzeil  v.  Crawford,  1  Pars.  Eq.  57.  A  purchaser  will  not  be 
compelled  to  accept  a  title  depending  upon  an  illegal  sale,  while  it  remains 
open  to  revision  at  the  discretion  of  a  court  of  law  :  Young  v.  Rathbone,  1 
Green  (N.  J.)  224. 

If  in  the  progress  of  a  suit  for  specific  performance  of  a  real  contract, 
objections  to  a  title  are  discovered,  never  made  during  the  negotiations,  the 
defendant  cannot  insist  on  such  objections  as  excusing  him  from  perform- 
ance, if  the  plaintifi"  is  able  and  willing  to  remove  them  when  first  pointed 
out:  Dalzeil  ».  Crawford,  ut  sup.  In  the  same  case  it  was  laid  down  as 
the  doctrine  of  the  court,  that  adverse  opinions  of  conveyancers  and  coun- 
sel alone,  are  not  sufficient  ground  to  refuse  a  decree  for  specific  perform- 
ance of  a  contract  for  the  purchase  of  land :  Id.  37. 

Perhaps  the  law  was  stated  in  Dalzeil  v.  Crawford,  rather  more  broadly 
than  in  some  other  cases,  and  than  was  necessary  for  a  decision  on  the 
facts.  It  is  certainly  clear  that  a  purchaser  ought  not  to  be  forced  into  a 
possible  litigation,  merely  because  the  opinion  of  the  court,  which  binds  no 
one  but  himself,  happens  to  be  in  favor  of  the  title.  In  a  recent  case  in 
England  (Pyrke  v.  Waddingham,  10  Hare  1),  a  stricter  rule  was  acted  on. 
The  following  propositions  were  deduced  from  a  careful  examination  of 
the  authorities:  A  doubtful  title,  which  a  purchaser  will  not  be  compelled 
to  accept,  is  not  only  a  title  upon  which  the  court  entertains  doubt,  but  in- 
cludes also  a  title  which,  although  the  court  has  a  favorable  opinion  of  it, 
yet  may  reasonably  and  fairly  be  questioned,  in  the  opinion  of  other  com- 
petent persons ;  for  the  court  has  no  means  of  binding  the  question  as 
against  adverse  claimants,  or  of  indemnifying  the  purchaser,  if  its  own 
opinion  in  favor  of  the  title  should  turn  out  not  to  be  well  founded.  If 
the  doubts,  as  to  a  title,  arise  upon  a  question  connected  with  the  general 
law,  the  court  is  to  judge  whether  the  general  law  on  the  point  is  or  is  not 
settled ;  and  if  it  be  not,  or  if  the  doubts  as  to  the  title  may  be  aS'ected  by 
extrinsic  circumstances,  which  neither  the  purchaser  nor  the  court  can 
satisfactorily  investigate,  specific  performance  will  be  refused. 

The  rules  thus  stated  rest  upon  the  fundamental  principle,  that  every 


OF     SPECIFIC    PERFORMANCE.  205 

*entered  into  a  contract  framed  differently  from  his  r*o  r-i 
own  intention  J  notwithstanding  that  there  is  no 

purchaser  is  entitled  to  require  a  marketable  title,  and  it  is  only  an  in- 
dubitable title  that  is  a  marketable  one :  Swayne  v.  Lyon,  67  Penn.  St. 
436.  It  is  further  the  duty  of  the  court  on  questions  of  title  depending  on 
the  possibility  of  future  rights  arising,  to  consider  the  course  which  should 
be  taken  if  the  rights  had  actually  arisen  and  were  in  course  of  litigation : 
Pyrke  v.  Waddinghan,  10  Hare  1.  See  Sohier  v.  Williams,  1  Curtis  C. 
C.  479.  ''  To  force  a  title  on  a  purchaser,"  said  the  Vice-Chancellor  in 
Rogers  v.  Waterhouse,  4  Drew.  329,  "  the  opinion  of  the  Court  in  favor 
thereof  must  be  so  clear  that  it  cannot  apprehend  that  another  judge  may 
form  a  different  opinion."  See  also  Pegler  v.  White,  33  Beav.  403  ;  Howe 
V.  Hunt,  31  Id.  420.  A  vendor  may  make  an  agreement  for  the  sale  of 
his  title,  such  as  it  is,  and  this  agreement  will  be  specifically  enforced : 
Hume  V.  Pocock,  L.  R.  1  Eq.  423-662 ;  L.  R.  1  Ch.  App.  679. 

Though  equity  will  not  compel  a  vendee  to  take  a  bad  title,  yet  a  pecu- 
niary charge  against  a  good  title  presents  no  objection,  provided  the  pur- 
chaser can  be  protected  against  it :  Tiernan  r.  Roland,  15  Penn.  St.  441. 
See  Cox  r.  Coventon,  31  Beav.  378;  Wood  r.  Majoribanks,  3DeG.  &  J.  329; 
7  H.  L.  Cas.  806.  And  the  pendency  of  a  suit  for  the  land,  which  is 
found  on  investigation  to  be  groundless,  is  no  reason  for  refusing  specific 
performance :  Owings  v.  Baldwin,  8  Gill  337.  When  a  proposed  vendee 
buys  in  the  reversion,  and  then  refuses  to  complete  the  contract,  he  may 
be  compelled  to  do  so,  with  an  allowance  for  what  he  has  paid  :  Murrell 
r.  Goodyear,  1  De  G.,  F.  &  J.  432. 

A  court  of  equity  will  decree  a  specific  performance  of  a  contract  for 
the  sale  of  lands,  if  the  vendor  is  able  to  make  a  good  title  at  any  time 
before  the  decree  is  pronounced  :  Hepburn  r.  Dunlop,  1  Wheat.  179  ;  Bald- 
win V.  Salter,  8  Paige  473  ;  Hepburn  r.  Auld,  ubi  supra;  Graham  r.  Hack- 
with,  1  Marsh.  423  ;  Tyree  v.  Williams,  3  Bibb  366 ;  Seymour  r.  Delancy, 
3  Cowen  445;  Moss  v.  Hanson,  17  Penn.  St.  379;  Tieman  v.  Roland,  15 
Id.  429 ;  Richmond  v.  Gray,  3  Allen  25 ;  Luckett  v.  Williamson,  37  Mo. 
388.  And  where  a  vendor  of  land  cannot  make  a  valid  title  to  the  whole 
land  sold,  the  vendee  may  insist  upon  the  specific  performance  by  the  ven- 
dor, so  far  as  such  vendor  can  execute  it :  Jacobs  v.  Locke,  2  Ired.  Ch.  286 ; 
Henry  v.  Liles,  Id.  407 ;  Ketchum  r.  Stout,  20  Ohio  453 ;  Collins  v.  Smith, 
1  Head  251.  The  court  will  order  a  return  of  the  deposit  money  with  in- 
terest, where  the  vendor  cannoi  show  a  good  title,  and  will  give  the  ven- 
dee a  lien  on  the  estate  for  the  same  and  for  costs  :  Turner  v.  Marriott,  3 
Eq.  L.  R.  744. 

When  the  performance  of  a  contract  of  purchase  is  resisted  upon  grounds 
wholly  independent  of  the  validity  of  the  title,  and  the  objections  of  the 


206  ADAMS's    DOCTRINE    OF    EQUITY. 

unfairness  on  the  plaintiff's  part,  and  no  defect  or  doubt 
in  his  title  ;(y)  and  even  the  mere  fact  that  the  contract 
is  a  hard  one,  and  would  press  heavily  on  the  defendant, 
has  in  some  cases  been  considered  a  ground  for  refusing 
to  interfere.  (A) ^   • 

{g)  Clowes  v.  Higginson,  1  Ves.  &  B.  524 ;  commented  on  in  1  Sug.  V. 
&  P.  228  ;  Townsend  v.  Stangroom,  6  Ves.  328  ;  Mallins  v.  Freeman,  2  K. 
25  ;  Kennedy  v.  Lee,  3  Meriv.  441. 

(A)  Wedgwood  v.  Adams,  6  Bea.  600  ;  Talbot  v.  Ford,  13  Sim.  173 ; 
Pickering  ».  Ely,  2  N.  C.  C.  249,  266. 


purchasers  are  overruled ;  or  when  the  purchaser,  although  doubtful  of  the 
title,  consents  by  his  answer  to  accept  it  when  in  the  judgment  of  the  court  it 
can  be  rendered  valid,  it  is  sufficient  to  warrant  a  decree  for  a  specific  per- 
formance that  a  good  title  can  be  made  within  a  reasonable  time,  before 
the  final  decree.  But  when  it  appears  that  the  purchaser  rejected  the 
title  offered,  as  insufficient,  and  upon  that  ground  refused  and  still  refuses 
to  complete  the  contract,  the  entire  controversy  turns  upon  the  validity  of 
the  objections,  and  if  they  are  sufficient,  the  court  will  not  decree  a  specific 
performance:  Dominick  v.  Michael.  4  Sandf.  (S.  C.)  374.  When  objec- 
tions to  the  title  must  be  taken,  see  Lyle  v.  Yarborough,  John.  70. 

'  James  v.  State  Bank,  17  Alab.  69;  King  v.  Hamilton,  4  Peters  311 ; 
Bradbury  v.  White,  4  Greenl.  391  ;  Yancy  v.  Green,  6  Dana  444 ;  Orear  v. 
Tanner,  1  Bibb  237  ;  Frisby  v.  Ballance,  4  Scam.  287  5  Western  Railroad 
Company  w.  Babcock,  6  Met.  346;  Morss  v.  Llmendorf,  11  Paige  277; 
Coles  et  al.,  Ex'rs.,  v.  Bowne,  10  Id.  526  ;  Schmidt  v.  Livingston,  3  Edw. 
Ch.  213 ;  Helling  v.  Lumley,  5  Jur.  N.  S.  301 ;  where  the  defendant 
was  compelled  to  perform  his  contract,  altliough  the  performance  might 
occasion  a. forfeiture  of  this  lease. 

But  where  a  mistake  is  a  matter  deemed  perfectly  immaterial  by  both 
parties  at  the  time  of  the  contract,  which  would  not  have  varied  it  if  it  had 
been  known,  and  of  which  both  parties  were  equally  ignorant,  and  where 
the  contract  is  an  advantageous  one  to  the  purchaser,  qucere,  whether  a 
Court  of  equity  should  interfere ;  McFerran  v.  Taylor,  3  Cranch  270.  And 
a  Court  of  equity  will  carry  into  effect  the  original  intention  of  the  parties 
when  defectively  expressed  in  an  instrument  through  fraud  or  mistake : 
Hunt  V.  Freeman,  1  Ham.  490.  For  the  principle  in  which  the  court  pro- 
ceeds in  cases  of  mistake,  see  Swaisland  v.  Dearsley,  29  Beav.  430.  It  has 
been  held  in  several  cases  in  the  United  States,  that  a  bill  will  lie  to  cor- 
rect an  agreement  as  to  lands,  for  mistake,  upon  parol  evidence,  and  for 


OF    SPECIFIC    YERFORMANCE.  207 

In  applying  the  equity  of  specific  performance  to  real 
estate,  there  are  some  modifications  of  legal  rules,  which 
at  first  sight  appear  inconsistent  with  them,  and  repug- 
nant to  the  maxim,  that  "equity  follows  the  law."  The 
modifications  here  referred  to  are  those  of  enforcing  parol 
contracts  relating  to  land,  on  the  ground  that  they  have 
been  already  performed  in  part;  of  allowing  time  to  make 
out  a  title  beyond  the  day  which  the  contract  specifies ; 
and  of  allowing  a  conveyance  with  compensation  for  de- 
fects. The  wisdom  of  permitting  any  deviation  is  a  subject 
admitting  of  much  doubt.  But  the  particular  doctrines 
now  in  question  are  firmly  established  by  the  course  of 


specific  performance  of  the  agreement  as  corrected ;  or,  on  the  other  hand, 
that  the  defendant  in  a  bill  for  specific  performance,  may  by  his  answer  set 
up  mistake,  and  entitle  himself  to  specific  performance  of  the  reformed 
agreement,  against  the  claim  of  the  complainant  to  have  his  bill  dismissed, 
notwithstanding  the  Statute  of  Frauds:  Wall  r.  Arrington,  13  Geo.  88 ; 
Mosby  V.  Wall,  1  Cushm.  (Miss.)  81 :  Philpott  v.  Elliott,  4  Md.  Ch.  273 ; 
Moale  V.  Buchanan,  11  Gill  &  John.  325  ;  Tilton  v.  Tilton,  9  2^.  H.  385; 
Bellows  r.  Stone,  14  Id.  175 ;  Bradford  v.  Union  Bank,  13  How.  U.  S.  57  ; 
Gillespie  r.  Moon,  2  John.  Ch.  585  ;  Keisselbrock  v.  Livingstone,  4  John. 
Ch.  144.  And  this  doctrine  is  strongly  approved  by  Judge  Story,  Eq.  Jur. 
§§  160, 161,  &c.  But  in  other  American  cases,  as  Elder  v.  Elder,  10  Maine 
80;  Osborn  v.  Phelps,  19  Conn.  63 ;  Westbrook  v.  Habeson,  2  McCord  Ch. 
112;  Brooks  v.  Wheelock,  11  Pick.  439;  Miller  v.  Chetwood,  1  Green. 
Ch.  199 ;  Dennis  v.  Dennis,  4  Rich.  Eq.  307  ;  Best  v.  Stow.  2  Sandf.  Ch. 
298  ;  Climer  v.  Hovey,  15  Mich.  18 ;  and  in  England,  WooUam  v.  Heam, 
7  Ves.  Jr.  211  ;  Nurse  v.  Lord  Seymour,  13  Beav.  254,  it  is  held  that 
though  in  such  cases  mistake  is  good  ground  for  refusing  specific  perform- 
ance, that  being  within  the  discretion  of  a  chancellor,  it  cannot  furnish  a 
reason  for  active  relief  by  the  execution  of  the  agreement,  in  the  face  of 
the  Statute  of  Frauds.  For,  it  is  obvious  that  if  any  part  of  the  agree- 
ment remain  in  parol,  the  w*ole  must  be  so,  to  all  intents  and  purposes. 
This  view  is  supported  also  by  Judge  Hare,  in  the  able  note  to  Woollam 
V.  Hearn,  2  Lead.  Cases  Eq.,  part  i.,  404.  Where,  however,  the  agreement 
is  executed  by  part  performance,  it  is  agreed  on  all  hands,  that  in  this,  as 
in  other  cases,  the  question  is  no  longer  governed  by  the  statute :  Ibid. 
See,  Gilroy  v.  Alls,  22  Iowa  174. 


208  ADAMS's    DOCTRINE    OF    EQUITY. 

precedent,  and  may  perhaps  be  considered,  not  so  much 
deviations  from  the  rule  of  law,  as  subordinate  equities, 
or  developements  from  the  original  doctrine,  that  spe- 
cific performance  of  a  contract,  and  not  pecuniary  com- 
pensation for  its-  breach,  is  the  equitable  measure  of 
redress. 

The  first  of  these  subordinate  equities  is  that  of  enforc- 
ing parol  contracts  relating  to  land,  on  the  ground  that 
they  have  been  already  performed  in  part.  It  is  enacted 
by  the  Statute  of  Frauds,  that  no  action  shall  be  brought 
on  any  contract  for  sale  of  lands,  tenements,  or  heredita- 
ments ;  or  any  interest  in  or  concerning  them,  unless  the 
agreement  or  some  memorandum  or  note  thereof  shall  be 
in  writing  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him  lawfully 
r*8fi1  *^^thorized.(ey  Ifthe  requirements  of  this  statute 
are  not  complied  with,  a  contract  falling  within  its 
scope,  so  long  as  it  remains  in  fieri  cannot  be  enforced 
either  at  law  or  in  equity.  It  sometimes,  however,  happens 
that  a  contract  which  is  still  in  fieri,  at  law,  has  been 
already  performed  by  construction  of  equity;  for  if  it  is 
one  of  which  specific  performance  would  be  decreed,  it  is 
itself  in  some  sort  an  equitable  title ;  and  if  the  parties 
have  clothed  that  title  with  possession,  or  have  otherwise 
acted  on  it  as  an  existing  ownership,  they  are  held  to  have 
perfected  their  agreement  in  equity;  and  if  the  terms  of 
their  parol  contract  can  be  proved,  may  be  decreed  to 
perfect  it  by  a  conveyance  at  law.^ 

(i)  29  Car.  2,  c.  3,  sf  4. 

^  It  is  not  necessary  that  the  party  seeking  specific  performance  should 
have  signed  the  agreement :  Old  Colony  R.  R.  v.  Evans,  6  Gray  25. 

^  In  nearly  every  state  in  the  Union,  the  rule  is  settled,  that  part  per- 
formance takes  a  parol  agreement  out  of  the  Statute  of  Frauds.     Newton  ». 


OF    SPECIFIC    PERFORMANCE.        '  209 

The  doctrine  on  this  point  is  called  the  doctrine  of  part 
performance,  and  its  principle  appears  to  be  that,  if  one  of 

Swazey,  8  N.  II.  9  :  Downey  v.  Ilotchkiss,  2  Day  225 ;  Annan  v.  Merritt, 
13  Conn.  478 :  Pugh  v.  Good,  3  W.  &  S.  56  ;  Harris  v.  Knickerbacker, 
5  Wend.  038 ;  Parkhurst  v.  Van  Cortland,  14  Johns.  15 ;  Hall  &  Wife  ». 
Hall  et  al.,  1  Gill  383 ;  Tilton  v.  Tilton,  9  N.  II.  3«6 ;  Wilde  v.  Fox,  1 
Rand.  165;  Gough  ».  Crane,  3  Md.  Ch.  119;  Johnson  v.  McGruder,  15 
Miss.  365 ;  Stoddart  v.  Tuck,  5  Md.  18  ;  Dougan  v.  Blocher,  24  Penn.  St. 
28;  McCue  r.  Johnston,  25  Penn.  St.  306;  Printup  v.  Mitchell,  17  Geo. 
558;  Offenhouse  v.  Burleson,  11  Texas  87  ;  Parke  v.  Seewright,  20  Miss. 
85;  Despain  r.  Carter.  21  Id.  331;  Arguello  v.  Edinger,  10  Cal.  150; 
and  see  the  rules  upon  this  subject  stated  in  Purcell  v.  Miner,  4  Wall.  S.  C. 
513  ;  Chastain  v.  Smith,  30  Geo.  96.  Though  the  agreement  must  be  clearly 
and  unequivocally  proved :  Charnley  v.  Hansbury,  13  Penn.  St.  16;  Owings 
V.  Baldwin,  8  Gill.  337  ;  Bracken  v.  Hambrick,  25  Texas  408  ;  Broughton 
V.  Coffer,  18  Gratt.  (Va.)  184;  Knoll  v.  Harvey,  19  Wis.  99;  and  must  be 
shown  distinctly  to  be  referable  exclusively  to  the  contract  set  up  in  the 
bill :  Duvall  v.  Myers,  2  Md.  Ch.  401  ;  Eyre  v.  Eyre,  4  Green  (X.  J.)  102 ; 
Patrick  r.  Ilorton,  3  W.  Va.  23  ;  and  the  remedy  must  be  mutual :  Smith 
c.  McVeigh,  3  Stockt.  239 ;  Meason  v.  Kaine,  63  Penn.  St.  335 ;  see  also 
Van  Dor^  v.  Robinson,  1  Greeli  (N.  J.)  256. 

But  in  some  of  the  states,  as  in  Tennessee,  North  Carolina,  Massachu- 
setts and  Maine,  the  general  rule  is  different.  See  Patton  r.  MeClure,  1 
Mart.  &  Yorg.  333  ;  Ridley  v.  McNairy  et  al.,  2  Humph.  174;  Stearns  v. 
Hubbard,  8  Greenl.  320 ;  Parker  v.  Parker,  1  Gray  409 ;  Wilton  v.  Har- 
wood,  23  Maine  131 ;  Patterson  w.  Yeaton,  47  Maine  308 ;  Robeson  v. 
Hornbaker,  2  Green.  Ch.  60;  Brooks  v.  Wheelock,  11  Pick.  439;  Wingate 
V.  Dail,  2  Har.  &  J.  76  ;  Ellis  v.  Ellis,  1  Dev.  Eq.  341  ;  Albea  v.  Griffin,  2 
Dev.  &  Bat.  Eq.  9  ;  Dunn  v.  Moore,  3  Ired.  Eq.  364 ;  Alien  v.  Chambers, 
4  Id.  125.  If,  however,  the  statute  is  set  up,  the  money  will  be  decreed 
to  be  refunded  with  interest,  and  as  against  the  vendors,  it  will  be  decreed 
a  lien  on  the  land  agreed  to  be  conveyed :  Hilton  v.  Duncan,  1  Cold. 
(Tenn.)  313. 

Payment  or  part  payment  of  the  purchase-money,  is  not  such  a  part 
performance  of  a  parol  contract,  as  will  take  the  case  out  of  the  Statute  of 
Frauds:  Parker  t'.  Wills,  6  Wharton  153;  Jackson  i\  Cutright,  5  Munf. 
308  ;  Haight  v.  Child,  34  Barb.  186  ;  Hatcher  v.  Hatcher,  1  McMullan's 
Ch.  311 ;  Smith  v.  Smith,  1  Rich.  Ch.  130;  Anderson  r.  Chick,  1  Bailey 
Ch.  118  ;  Hood  v.  Bowman,  1  Freem.  Ch.  290 ;  Bean  v.  Valle,  2  Miss.  126 ; 
Johnston  v.  Glancy,  4  Blackf.  94 ;  Sites  v.  Keller,  6  Ham.  483 ;  contra, 
Townsend  v.  Houston,  1  Harring.  532 ;  McMurtrie  v.  Bennett,  Harring. 
Ch.  124.  But  where  a  party  who  has  paid  the  purchase-money  upon  a 
14 


210  ADAMS's    DOCTRINE     OF    EQUITY. 

the  contracting  parties  induce  the  other  so  to  act,  that,  if 
the  contract  be  abandoned,  he  cannot  be  restored  to  his 

parol  contract,  cannot  be  replaced  in  the  same  position  by  a  recovery  of 
the  money  paid,  he  will  be  entitled  to  specific  performance :  Malins  v. 
Brown,  4  Comst.  403.     See  Nunn  v.  Fabian,  L.  R.  1  Ch.  Ap.  35. 

When  a  parol  contract  is  entered  into  in  consideration  of  marriage,  the 
solemnization  of  the  marriage  is  not  such  a  part  performance  as  will  take 
the  case  out  of  the  Statute :  Caton  v.  Caton,  L.  R.  1  Ch.  Ap.  137.  Part 
performance  by  the  party  sought  to  be  charged  does  not  take  the  case  out 
of  the  statute  :  Id. 

The  part  performance  of  a  parol  agreement  to  devise  lands  will  take  the 
case  out  of  the  statute  :  Davison  v.  Davison,  2  Beas.  246  ;  Johnson  v.  Hub- 
bell,  2  Stockt.  332  ;  Watson  v.  Mahan,  20  Ind.  223. 

And  where  the  purchaser  has  taken  possession,  paid  the  purchase-money, 
and  made  improvements  thereon,  equity  will  enforce  a  specific  perform- 
ance :  Casler  v.  Thompson,  3  Green  Ch.  59  ;  Wetmore  v.  White,  2  Cal.  Ca. 
87  ;  Ellis  v.  Ellis,  1   Dev.  Ch.   180  [contra,  s.  c.  341)  ;  Smith  v.  Smith,  1 
Rich.  Ch.  130 ;  Massey  v.  Mcllwain,  2  Hill  Ch.  421 ;  Cox  v.  Cox,  Peck  443 
see  also  Johnston  v.  Glancy,  4  Blackf.  94  ;  Tibbs  v.  Barker,  1  Blackf.  58 
Moreland   v.   Lemasters,  4   Id.    383 ;   Brewer   v.   Brewer,   19   Ala.  481 
School  Dist.  No.  3  v.  MacLoon,  4  Wis.  79  ;  Ramsey  v.  Liston,  25  111.  114 
Stevens  v.  Wheeler,  Id.  300;  Neatherly  v.  Ripley,  21  Tex.  434;  Mime  v. 
Lockett,  33  Ga.  9;  Perkins  w.  Hadsell,  50  111.  216;  Howe  v.  Rogers,  32 
Tex.  218  ;  Freeman  v.  Freeman,  43  N.  Y.  34.    Such  improvements  must  be 
of  a  permanent,  nature,  or  of  great  value:  Peckham  v.  Barker,  8  R.  I.  17. 

So  it  is  a  sufficient  part  performance  to  take  the  case  out  of  the  Statute 
of  Frauds  for  the  purchaser  to  take  possession  of  the  lands  sold  by  virtue 
of  the  agreement,  where  the  assent  of  the  vendor  is  shown,  or  is  inferable : 
Smith  V.  Underdunk,  1  Sandf.  Ch.  579  ;  Pugh  v.  Good,  3  W.  &  S.  56 ; 
Moale  V.  Buchanan,  11  Gill  &  J.  314 ;  Hart??.  Hart,  3  Dessaus.  592  ;  Ander- 
son V.  Chick,  1  Bailey  Ch.  118;  Brock  v.  Cook,  3  Porter  464;  Wagoner 
V.  Speck,  3  Ham.  292;  Palmer  v.  Richardson,  3  Strobh.  Eq.  16. 

But  it  has  been  held  that  delivery  of  possession  of  a  part  of  the  land  is 
not  sufficient:  Allen's  Est.,  1  W.  &  S.  383  ;  or  where  the  party  going  into 
possession  made  temporary  improvements  much  less  in  value  than  the 
rent  of  the  premises :  Wack  v.  Sorber,  2  Wharton  387  ;  see  also  Mims  v. 
Lockett,  33  Ga.  9  ;  neither  is  the  remaining  in  possession  of  the  purchaser, 
if  he  was  in  possession  at  the  time  of  the  purchase  :  Hatcher  v.  Hatcher, 
1  McMuUan  Ch.  311  ;  Johnston  v.  Glancy,  4  Blackf.  94;  Christy  v.  Barn- 
hart,  14  Penn.  St.  260;  Mahana  r.  Blunt,  20  Iowa  142.  The  part  per- 
formance must  be  such  as  would  make  the  party  asking  the  specific  relief 
a  wrongdoer  in  case  the  specific  performance  were  not  decreed.     And  de- 


OF     SPECIFIC    PERFORMANCE.  211 

former  position,  the  contract  must  be  considered  as  per- 
fected in  equity,  and  a  refusal  to  complete  it  at  law  is  in 
the  nature  of  a  fraud. ^  Such,  for  instance,  is  the  case, 
where  upon  a  parol  agreement  for  the  purchase  of  an 
estate,  a  party,  not  otherwise  entitled  to  the  possession, 
is  admitted  thereto ;  for  if  the  agreement  be  invalid,  he 
is  made  a  trespasser,  and  is  liable  to  answer  as  a  tres- 
passer at  law.  The  equity  is  still  stronger  if,  after  being 
let  into  possession,  he  has  been  allowed  to  build  and  other- 
wise to  expend  money  on  the  estate.  If  the  possession 
may  be  referred  to  an  independent  title,  e.  p.,  where  it  is 
held  under  a  previously  existing  tenancy,  the  same  prin- 
ciple does  not  apply,  unless  the  parties  so  conduct  them- 


livery  of  possession  must  have  been  in  pursuance  and  part  execution  of 
the  agreement  charged  in  the  bill :  Ham  t'.  Goodrich,  33  N.  H.  32. 

Continuance  of  a  previous  possession  may  be  a  part  performance:  Blan- 
chard  v.  McDougal,  6  Wis.  167 ;  Spalding  v.  Conzelraan,  30  Missouri  177. 
See  however  Mahance  v.  Blunt,  supra.  Where  a  vendor  files  a  bill  for 
specific  performance,  part  performance  by  the  vendee  cannot  be  used  to 
take  the  case  out  of  the  statute :  Luckett  v.  Williamson,  37  Mo.  388, 

For  other  general  instances  of  part  performance,  see  Phillips  u.  Edwards, 
33  Beav.  440  ;  Pain  v.  Coombs,  1  De  G.  &  J.  34  ;  Rankin  v.  Lay,  2  De  G., 
F.  &.  J.  72 ;  Daniels  v.  Lewis,  16  Wis.  140 ;  Peckham  v.  Barker,  8  R.  I. 
17  ;  Welsh  i).  Bayard,  21  N.  J.  Eq.  186  ;  Richmond  v.  Foote,  3  Lans.  (N.  Y.) 
244 :  Mason  v.  Blair,  33  Hi.  194;  Hedrick  v.  Hern,  4  W.  Va.  620. 

The  rule  has  recently  been  stated  to  be  in  Pennsylvania,  that  every  parol 
contract  is  within  the  Statute  of  Frauds,  except  where  there  has  been  snch 
performance  as  cannot  be  compensated  in  damages.  "  Without  possession 
taken  and  maintained  under  the  contract,  there  can  be  no  pretence  of  part 
performance  ;  but  generally,"  say  the  Court,  "that  is  an  act  which  admits 
of  compensation,  and  therefore  too  much  is  made  of  it  when  it  is  treated 
as  sufficient  ground  for  decreeing  specific  performance  :"  Moore  v.  Small, 
19  Penn.  St.  461,  Proof  of  a  parol  contract  for  the  sale  of  lands,  delivery 
of  possession  pursuant  thereto,  part  payment  of  the  purchase-money  and 
valuable  improvements,  are  the  full  measure  of  what  is  required  to  take  a 
case  out  of  the  statute :  Milliken  v.  Dravo,  67  Penn.  St.  230. 

^  Gilbert  v.  The  Trustees  of  the  East  Newark  Co.,  1  Beas.  180 ;  Arguello 
V.  Edinger,  10  Cal.  150 ;  Paine  v.  Wilcox,  16  Wis.  202. 


212  ADAMS's    DOCTRINE     OF    EQUITY. 

selves,  as  to  show  that  they  are  acting  under  the  contract, 
nor  does  it  apply  to  any  acts  which  do  not  alter  the  posi- 
tion of  the  parties.  Such,  for  instance,  are  the  taking  of 
surveys,  the  preparation  of  conveyances,  the  payment  of 
earnest,  and  even  the  payment  of  purchase-money  itself; 
for,  although  all  these  acts  are  in  some  sense  a  perform- 
ance of  the  contract,  yet  their  consequences  may  be  set 
r^nnn  right  by  ^damages  at  law,  and  they  do  not  place 
the  parties  in  a  position  from  which  they  can  only 
be  extricated  by  its  completion.  (X-)^ 

The  same  principle  which  establishes  a  parol  contract 
where  the  title  under  it  is  sustained  by  part  performance, 
is  also  applicable  where  the  purchaser  of  real  estate  has 
waived  by  his  conduct  any  objection  of  title.^  The  general 
rule  is,  that  a  contract  for  the  purchase  of  realty  implies 
as  one  of  its  terms  that  a  title  shall  be  shown.     And  if 

{k)  Mitf.  266  ;  1  Sug.  V.  &  P.  c.  iii,  s.  7 ;  Wills  v.  Stradling,  3  Ves.  378 ; 
Cooth  V.  Jackson,  6  Id.  12 ;  Clinan  v.  Cooke,  1  Sch.  &  L.  22,  41 ;  Suther- 
land V.  Briggs,  1  Hare  26-,  Dale  v.  Hamilton,  5  Id.  369,  381 ;  Mundy  v. 
Joliffe,  5  M.  &  C.  167. 

*  A  written  agreement  will  be  specifically  enforced  in  equity,  according 
to  its  terms,  although  verbally  another  provision  had  been  agreed  to  at  the 
game  time,  though  not  inserted  in  the  agreement,  if  the  person  who  is  to 
perform  the  omitted  term  consents  to  its  performance :  Martin  v.  Pycroft, 
2  De  G.,  M.  &  G.  785. 

*  And  there  is  a  settled  distinction  between  the  case  of  a  vendor,  coming 
into  a  Court  of  equity  to  compel  a  vendee  to  performance,  and  of  a  vendee 
resorting  to  equity  to  compel  a  vendor  to  perform.  In  the  first  case,  if  the 
vendor  csvnnot  make  out  a  title  as  to  part  of  subject-matter  of  the  contract, 
equity  will  not  compel  the  vendee  to  perform  the  contract  j??'0  tanto.  But 
where  a  vendee  seeks  a  specific  execution  of  an  agreement,  there  is  much 
greater  reason  for  affbrding  him  the  aid  of  the  court,  where  he  is  desirous 
of  taking  the  part  to  which  a  title  can  be  made  :  Waters  v.  Travis,  on  ap- 
peal, 9  Johns.  450.  See  S.  E.  Railway  v.  Knoll,  10  Hare  122 ;  Hopper  v. 
Hopper,  1  Green  (N.  J.)  147. 


OF    SPECIFIC    PERFORMANCE.  213 

there  be  no  waiver  of  this  right  in  the  contract,  it  cannot 
be  afterwards  waived  at  law  by  parol,  for  such  waiver 
would  in  effect  create  a  new  contract  to  be  proved  partly 
by  the  written  agreement  and  partly  by  the  subsequent 
parol  waiver.  {I)  In  equity,  however,  the  purchaser  may 
accept  the  defective  title,  and  by  treating  the  contract  as 
already  performed,  may  preclude  himself  from  insisting  on 
any  further  title.  He  may,  for  instance,  thus  bind  him- 
self by  taking  possession  and  doing  acts  of  ownership  after 
he  is  aware  that  objections  exist,  where  such  possession 
and  acts  of  ownership  are  not  authorized  by  his  contract ; 
or  he  may  do  so  by  simple  acquiescence.^  The  waiver, 
however,  must  be  intentional ;  and  his  conduct  is  merely 
evidence  from  which  the  intention  may  be  presumed.  If, 
therefore,  there  be  a  subsequent  treaty  respecting  objec- 
tions, the  presumption  of  waiver  is  at  an  end.(m)  And 
even  if  he  has  waived  his  right  to  call  for  a  title,  yet  if 
the  title  be  proved  bad,  he  is  not  compelled  to  accept  it, 
unless  he  has  expressly  contracted  to  take  such  title  as 
the  vendor  has.(w) 

The  second  equity  is  that  of  allowing  time  to  make  out 
*a  title  beyond  the  day  which  the  contract  speci-    r*oo-i 
fies.     It  is  an  obvious  principle,  both  of  law  and 
of  equity,  that  no  one  can  have  a  contract  enforced  in  his 

{I)  Gos8  V.  Lord  Nugent,  5  B.  &  Ad.  58. 

(m)  Knatehbull  r.  Grueber,  1  Mad.  153,  170  5  Burroughs  p.  Oakley,  3 
Sw.  159  ;  Calcraft  v.  Roebuck,  1  Ves.  J.  221 ;  Osborne  v.  Harvey,  1  N.  C.  C. 
116 ;  2  Sug.  V.  &  P.  c.  viii,  s.  1. 

(n)  Warren  r.  Richardson,  You.  1  ;  Blachford  v.  Kirkpatrick,  6  Bea. 
232;  Duke  v.  Barnett,  2  Coll.  337. 

'  Palmer  p.  Richardson,  3  Strob.  Eq.  16.  If  the  vendee  wishes  to  rescind 
the  contract,  he  must  give  up  possession,  or  do  some  other  act  indicating 
his  intention :  Thompkins  r.  Hyatt,  28  N.  Y.  347 ;  MuUin  r.  Bloomer, 
11  Iowa  360. 


214  ADAMS's    DOCTRINE    OF    EQUITY. 

favor,  unless  he  has  performed,  or  is  ready  to  perforin, 
his  own  part.  And  it  would  apparently  follow  from  this 
principle  that,  if  the  seller  of  an  estate  has  contractf  d  to 
show  a  title  by  a  specified  day,  and  has  failed  to  do  so, 
he  cannot  afterwards  enforce  his  contract.  This  conclu- 
sion is  accurate  with  respect  to  proceedings  at  law,  but  is 
modified  in  equity  by  the  doctrine  already  noticed,  that 
the 'Contract  itself  is  in  the  nature  of  a  title.  And  it  is 
accordingly  held  that  if  a  substantial  ownership  exists, 
though  the  title  be  not  fully  cleared  on  the  appointed  day, 
specific  performance  may  be  decreed ;  and  the  Court  may 
rectify  the  incidental  delay  by  giving  the  intermediate 
rents  to  the  purchaser,  and  interest  on  the  purchase- 
money  to  the  vendor. 

The  doctrine  on  this  point  is  expressed  by  the  maxim 
that  "time  is  not  of  the  essence  of  a  contract  in  equity."* 

It  is  not,  however,  to  be  understood  from  this  maxim 
that  time  cannot  be  made  of  the  essence  of  the  contract. 
The  mere  fact  that  a  day  has  been  specified  for  comple- 
tion, will  not  per  se  render  it  essential.  But  the  parties 
may  contract  on  what  terms  they  will,  and  may  declare, 
if  they  think  fit,  that  it  shall  be  so  considered.  The 
same  conclusion  may  be  drawn  by  implication  from  the 
nature  of  the  property  to  which  the  contract  refers;  as, 
for  instance,  if  it  be  property  in  reversion,  or  if  it  be  re- 
quired for  the  purposes  of  a  trade  or  manufactory,  or  be 
of  a  fluctuating  value.  If  time  is  not  originally  declared 
essential,  it  cannot  I)e  made  so  by  either  party  alone. 
But  if  delay  takes  place,  the  aggrieved  party  may  give 

*  Remington  v.  Irwin,  14  Penn.  St.  143 ;  Bryson  v.  Peak,  8  Ired.  Eq. 
310;  Glover  v.  Fisher,  11  111.  666;  Tiernan  v.  Roland,  15  Penn.  St.  429; 
Parkin  v.  Thorold,  16  Jur.  959 ;  Pegg  v.  Wisden,  16  Beav.  246  ;  Roberts 
V.  Denny,  3  De  G.,  M.  &  G.  284 ;  Emmons  v.  Kiger,  23  Ind.  483. 


OF     SPECIFIC    PERFORMANCE.  215 

notice  that  he  abandons  the  contract,  and  if  the  other 
makes  no  prompt  assertion  of  his  right,  he  will  be  consi- 
dered as  acquiescing  in  such  notice,  and  as  abandoning 
his  equity  for  specific  performance,  (o.)^ 

(o)  Walker  r.  JeflFreys,  1  Hare  341,  348  ;  King  v.  Wilson,  6  Bea.  124 ; 
1  Sug.  V.  &  P.  c.  V. 

'  Time  is  not  generally  of  the  essence  of  the  contract,  but  where  it  ap- 
pears that  time  is  really  material  to  the  parties,  the  right  to  a  specific  per- 
formance may  depend  on  it :  Garnett  v.  Macon,  2  Brock.  185 ;  s.  c.  6  Call. 
308  :  Garretson  v.  Vanloon,  2  Iowa  128  ;  Armstrong  v.  Pierson,  5  Clarke 
(la.)  317  ;  Scarlett  v.  Hunter,  3  Jon.  Eq.  84;  Morris  v.  Hoyt,  11  Mich.  9  ; 
Du  Bois  V.  Baum,  46  Penn.  St.  537  ;  Edwards  v.  Atkinson,  14  Texas  373 ; 
Keller  v.  Fisher,  7  Ind.  718;  Potter  r.  Tuttle,  22  Conn.  513;  Wells  o. 
Maxwell,  32  Beav.  408 ;  Morgan  v.  Scott,  26  Penn.  St.  55  ;  Hanna  v.  Rate- 
kin,  43  111.  462 ;  Andrews  v.  Bell,  56  Penn.  St.  343 ;  Miller  v.  Henlan,  51 
Id.  265  ;  Spaulding  r.  Alexander,  6  Bush  (Ky.)  160.  And  where  by  lapse 
of  time  the  value  of  the  property  is  greatly  diminished,  performance  will 
not  be  compelled :  McKay  v.  Carrington,  1  McLean  50.  So  where  the 
vendee  has  purchased  to  sell,  time  is  of  the  essence  of  the  contract :  Id. 
See  also,  Benedict  r.  Lynch,  1  John.  Ch.  370 ;  Jackson  r.  Ligon,  3  Leigh 
161.  But  see  Brashier  v.  Gratz,  6  Wheaton  528;  Bank  of  Columbia  v. 
Hagner,  1  Pet.  465  ;  Hepburn  r.  Auld,  5  Cranch  262  ;  where  in  the  Supreme 
Court  of  the  United  States,  it  was  held,  that  time  is  not  of  the  essence  of 
a  contract  of  sale  ;  and  a  failure  on  the  part  of  vendor  or  purchaser  on  a 
stipulated  day,  does  not  of  itself  deprive  him  of  the  right  to  a  specific 
performance  when  he  is  able  to  comply  with  his  part  of  the  agreement. 
Though  in  Goldsmith  v.  Guild,  10  Allen  239,  the  Court  seemed  to  think 
that  in  this  country  time  should  be  made  the  essence  of  the  contract.  See 
also,  Macbryde  v.  Weekes,  22  Beav.  533.  Mistake  may  sometimes  prevent 
time  from  becoming  of  the  essence  when  it  otherwise  would :  Todd  v.  Taft, 
7  Allen  371.  Very  great  delay,  e.  g.,  twenty  one  years,  will  not  be  excused : 
Greene.  Covilland,  10  Cal.  317.  See  also,  Francis  r.  Love,3  Jon.  Eq. 
321  ;  Stretch  v.  Schenck,  23  Ind.  77.  Time  may  be  always  made  material 
by  either  party  if  he  choose.  Either  may  demand  performance  on  the 
stipulated  day,  and  if  the  other  do  not  then  comply,  may  elect  to  rescind, 
which  rescission  will  free  him  from  the  obligations  of  the  contract  in 
law  and  equity:  Dominick  p.  Michael,  4  Sandf.  S.  C.  374;  Patchin  r. 
Lamborn,  31  Penn.  St.  314;  Ives  v.  Armstrong,  5  R.  I.  567;  Stow  r. 
Russell,  36  111.  18;  Heckard  ».  Sayre,  34  Id.  142;  King  r.  Ruckman, 
20  N.  J.  Eq.  316.  A  reasonable  time  must,  however,  be  given  on  a 
demand  for  performance :  Parkin  ».  Thorold,  16  Jurist  959.     Time  also 


216  ADAMS's    DOCTRINE    OF    EQUITY. 

r*ftc)'l  *"^^  ^^^^  absence  of  any  special  matter,  a  wide 
liberty  as  to  time  is  given  to  the  vendor.  He  is 
permitted  to  make  nut  his  title  after  the  commencement 
of  a  suit,  or  at  any  time  before  the  making  of  a  final 
decree,  subject,  however,  to  a  liability  for  costs,  where, 
the  title  has  not  been  shown  before  litigation  began. (^j) 
And  in  some  cases  where  a  person,  being  owner  of  a 
portion  only  of  the  estate,  or  having  but  a  limited  inter- 
est therein,  has  bond  fide  contracted  for  a  sale  of  the 
whole,  he  has  been  allowed  time  to  obtain  a  title  to  the 
rest,  or  to  extend  his  interest  into  a  fee.(§') 

It  has  been  sometimes  attempted  to  extend  the  maxim, 
that  "time  is  not  of  the  essence  of  a  contract,"  to  cases 
where  covenants  have  been  contained  in  a  lease  that  the 
lessor  will  renew,  on  request,  within  a  specified  time, 
and  the  lessee  has  failed  in  making  the  request.  In  cases 
of  this  kind,  if  the  delay  has  been  occasioned  by  unavoid- 
able accident  or  misfortune,  which  has  disabled  the  lessee 
from  applying  at  the  stated  time,  it  seems  that  he  may 
have  relief  in  equity.     But  unless  there  be  some  special 

[p)  Townsend  v.  Champernowne,  3  Y.  &  C.  505 ;  Scoones  v.  Morrell,  1 
Bea.  251, 

[q]  Esdaile  v.  Stephenson,  2  Sug.  V.  &  P.  30 ;  Chamberlain  v.  Lee,  10 
Sim.  444 ;  Salisbury  v.  Hatcher,  2  N.  C.  C.  54. 

becomes  material,  in  connection  with  an  important  change  in  value,  or 
circumstances:  Southern  Life  Ins,  &c.,  Co.  v.  Cole,  4  Florida  359.  Or 
where  there  are  not  mutual  remedies :  Westerman  v.  Means,  12  Penn.  St. 
97.  So,  an  alteration  in  the  situation  of  the  parties  will  be  taken  into 
consideration  :  Waters  v.  Howard,  8  Gill  262.  So,  time  is  material  on  an 
agreement  for  the  leasing  of  a  house,  or  surety  for  the  rent  being  pro- 
cured before  a  day  fixed  :  Mitchell  v.  Wilson,  4  Edw.  Ch.  697.  So  also, 
where  by  the  original  agreement  a  re-sale  may  be  made  if  the  vendor  does 
not  comply  within  a  fixed  period :  Bodine  w.  Glading,  21  Penn.  St.  50  ; 
Magoffin  V.  Holt,  1  Duvall  (Ky.)  95.  But  if  time  is  to  be  considered  of 
the  essence  of  a  contract,  the  point  must  be  made  promptly :  Monro  v. 
Taylor,  8  Hare  62  ;  Price  v.  Griffith,  1  De  G.,  M.  &  G.  80. 


OF     SPECIFIC     PERFORMANCE.  217 

circumstances  of  excuse,  a  specific  performance  will  not 
be  decreed ;  for  the  contract  is,  that  the  question  of 
renewal  or  non-renewal  shall  be  determined  at  the  time 
appointed,  and  if  the  lessee  were  relievable,  notwith- 
standing the  delay,  the  effect  would  be  to  bind  the  lessor, 
and  to  leave  himself  unbound,  (r) 

The  third  equity  is  that  of  allowing  a  conveyance  with 
compensation  for  defects  where  a  contract  has  been  made 
for  sale  of  an  estate,  which  cannot  be  literally  performed 
in  toto,  whether  by  reason  of  an  unexpected  failure  in  the 
title  to  part,  of  inaccuracy  in  the  terms  of  description  or 
of  diminution  in  value  by  liability  to  a  charge.  It  is  not 
unusual  to  provide  against  these  contingencies  by  a 
'^'condition  that  misdescriptions  and  errors  shall  r^QA-i 
not  vitiate  the  sale,  but  that  a  compensation  shall 
be  given  for  the  difference  in  value.  But,  unless  there  be 
such  a  condition,  the  contract  cannot  be  partially  enforced 
at  law ;  for  a  Court  of  law  has  no  adequate  machinery  by 
which  it  may  investigate  the  several  points  of  variance, 
and  determine  how  far  they  affect  the  essence  of  the  con- 
tract, and  how  far  they  may  be  remedied  by  compensation. 
The  vendor,  therefore,  cannot  at  law  recover  part  of  the 
purchase-money,  if  unable  to  convey  the  entire  property, 
nor  can  the  purchaser  insist  on  paying  a  part  only  in  respect 
of  a  partial  failure  in  the  i?ale.(*)  In  equity,  on  the 
other  hand,  there  is  no  difficulty  in  making  the  requisite 
investigation;  and  therefore,  on  a  bill  for  specific  perform- 
ance, inquiry  will  be  made  whether  the  property  can  be 
either  literally  or  substantially  transferred.  If  a  sub- 
stantial transfer  can  be  made,  it  has   been  considered 

(r)  Bayley  v.  Corporation  of  Leominster,  3  B.  C.  C.  529 ;  City  of  London 
t'.  Mitford,  14  Ves.  41  ;  Harries  i*.  Bryant,  4  Russ.  89. 
(a)  Johnson  t".  Johnson,  3  £.  &  P.  1G2. 


218  ADAMS's    DOCTRINE     OF    EQUITY. 

against  conscience   to  take  advantage  of  small  circum- 
stances of  variation.^ 

In  such  a  case,  therefore,  where  the  mistake  made  has 
been  bond  fide,  and  not  material  to  the  purchaser's  enjoy- 
ment, the  vendor  may  insist  on  performance  with  compen- 
sation.^ But  it  must  be  clear  that  the  defect  is  not 
substantial,  for  a  purchaser  cannot  be  required  against  his 
will  to  pay  for  anything  but  what  he  has  bought.  He  is 
not,  for  example,  compellable  to  accept  a  lease  instead  of 


^  But  where  there  is  a  great  deficiency  in  the  quantity  of  land  the  Court 
will  not,  in  the  absence  of  fraud,  compel  the  vendor  to  complete  the  sale, 
making  a  deduction  in  the  price  for  the  deficiency :  Rugge  v.  Ellis,  1  Dessaus. 
160.  A  deficiency  of  171  acres  out  of  662  is  not  such  a  deterioration  as 
will  entitle  the  purchaser  to  have  a  contract  rescinded,  notice  being  given 
at  the  sale  that  a  claim  existed,  and  that  if  it  succeeded  a  proportional  de- 
duction would  be  made :  Wainwright  v.  Read,  1  Dessaus.  573.  See  also 
Cordingley  v.  Cheesebrough,  3  GifF.  496. 

^  Hepburn  v.  Auld,  5  Cranch  26"2;  Evans  v.  Kingsberry,  2  Rand.  120; 
Rankin  v.  Maxwell,  2  A.  K.  Marsh.  488  ;  King  v.  Bardeau,  6  John.  Ch. 
38 ;  Wiswall  v.  McGowan,  1  Hofi".  Ch.  125 ;  Harbers  v.  Gadsden,  6  Rich. 
Eq.  284.  Damages  may  in  some  cases  also  be  decreed :  Wiswall  v.  Mc- 
Gowan, ubi  supra ;  Slaughter  v.  Tindle,  1  Lit.  358  ;  Fisher  v.  Kay,  2  Bibb 
434;  Wright  w.  Young,  6  Wis.  127.  And  the  rule  of  compensation  on  a 
bill  for  a  specific  performance,  where  a  conveyance  cannot  be  enforced,  is 
the  value  of  the  land  at  the  time  the  contract  should  have  been  performed  : 
Dustin  V.  Newcome/,  8  Ham.  49.  See,  on  this  subject,  note  to  Seton  v. 
Slade,  2  Lead.  Cas.  Eq.,  p.  ii.  33.  Compensation  in  money,  however,  is  not 
always  proper  ;  thus,  on  a  bill  for  specific  performance  of  an  agreement  for 
a  partition  of  coal  mines  owned  in  common  by  complainant  and  defendant, 
and  for  an  account  of  coal  already  taken  out,  it  was  held  that  the  most 
equitable  mode  of  partition  was,  that  coal  should  be  assigned  to  the  com- 
plainant, in  order  to  make  up  his  full  share,  regard  being  had  to  quantity 
and  quality,  and  to  accessability  and  convenience  in  mining,  with  reference 
to  all  the  parties  interested,  instead  of  decreeing  the  value  in  money  of  the 
coal  taken  out  and  sold :  Young  v.  Frost,  1  Md.  377 ;  King  v.  Ruckman, 
20  N.  J.  Eq.  316.     See  also  Coleman's  Appeal,  62  Penn.  St.  252. 

In  Pennsylvania  it  is  competent  for  a  jury,  on  principles  of  equity,  to 
find  conditional  damages,  to  be  released  on  specific  performance  of  a  con- 
tract: Decamp  v.  Feay,  5  S.  &  R.  322;  Hauberger  v.  Root,  5  Penn.  St.  112. 


OF     SPECIFIC     PERFORMANCE.  219 

an  underlease ;  a  copyhold  instead  of  a  freehold ;  a  life 
estate  instead  of  a  fee;  an  estate  of  reversion  instead  of 
one  in  possession;  nor  to  take  a  part  only  of  the  estate 
contracted  for,  whether  the  other  part  is  a  large  portion 
of  the  entire  subject-matter,  or  is  in  its  nature  material  to 
the  enjoyment  of  the  rest.(/) 

In  favor  of  the  purchaser  the  equity  is  of  wider  ap- 
plication, and  the  rule  is  that,  although  he  cannot  have 
a  partial  interest  forced  upon  him,  yet  if  he  entered  into 
the  contract  *in  ignorance  of  the  vendor's  inca-  rHcn-i-i 
pacity  to  give  him  the  whole  and  chooses  after- 
wards to  take  as  much  as  he  can  get,  he  has  generally, 
though  not  universally,  a  right  to  insist  on  that,  with 
compensation  for  the  defect,  (m)^ 

In  both  cases  alike,  whether  the  claim  be  made  by  the 
vendor  or  the  purchaser,  the  defect  must  be  one  admitting 

{t\  Stewart  v.  Alliston.  1  Meriv.  26;  Knatchbull  v.  Grueber,  1  Mad.  153; 
1  Sug.  Y.  &  P.  c.  vii :  [Tiernan  v.  Roland,  15  Penn.  St.  429.] 

(m)  Thomas  r.  Bering,  1  K.  729  ;  Wheatley  v.  Slade.  4  Sim.  126;  Graham 
V.  Oliver,  3  Bea.  124 ;  Nelthorpe  v.  Holgate,  1  Coll.  -03. 

^  Waters  v.  Travis,  9  Johns.  464 ;  Erwin  v.  Myers,  46  Penn.  St.  96— 
107 ;  Collins  r.  Smith,  1  Head  251.  Where  a  purchaser  of  land,  who,  on 
faith  of  a  parol  contract,  has  entered  into  possession  and  has  made  valuable 
improvements,  but,  on  bill  filed,  fails  to  make  out  such  a  case  as  would  en- 
title him  to  relief,  the  bill  may  be  retained  for  the  purpose  of  allowing  him 
compensation,  if  he  have  not  a  full  and  adequate  remedy  at  law :  Aday  v. 
Echols,  18  Ala.  353-,  Rockwell  r.  Lawrence,  2  Halst.  Ch.  190.  In  such 
case  the  land  should  be  charged  as  against  the  vendor  and  his  representa- 
tives for  the  amount  of  compensation  found  to  be  due,  unless  there  be  some 
circumstances  which  would  make  this  improper.  The  insolvency  of  the 
vendor's  estate,  he  being  dead,  is  not  a  sufficient  reason  for  refusing  so  to 
charge  it:  Aday  v.  Echols,  ut  supra.  On  the  death  of  a  vendor,  and  bill 
for  specific  performance  by  vendee,  the  dower  right  of  the  widow  is  to  be 
compensated  for,  not  by  the  deduction  of  a  gross  sum  on  its  estimated 
value,  but  one-third  of  the  purchase-money  is  to  be  retained  till  the  death 
of  the  dowress,  without  interest,  secured  by  a  lien  on  the  land :  Springle 
V.  Shields,  17  Ala.  295. 


220  ADAMS's    DOCTRINE    OF     EQUITY. 

of  compensation,  and  not  a  mere  matter  of  arbitrary 
damages.  (2;)  And  the  compensation  given  must  be  really 
compensation  for  a  present  loss,  and  not  indemnity  against 
a  future  risk.  For  the  offer  to  give  such  indemnity  is  in 
truth  merely  an  off^r  of  a  defective  title,  with  pecuniary 
compensation  in  the  event  of  its  failure.  In  some  cases 
where  an  estate  has  been  liable  to  a  contingent  charge,  a 
purchaser  has  been  compelled  to  accept  the  title  with  a 
security  protecting  him  against  the  charge.^  But  it  has 
been  doubted  whether  the  doctrine  of  these  cases  is  sound, 
and  whether  in  the  absence  of  an  express  contract,  the 
Court  ought  to  compel  either  a  vendor  to  give  or  a  pur- 
chaser to  accept  an  indemnity.  (?^)^ 

A  corresponding  relief  to  that  by  specific  performance 
is  given,  even  in  the  absence  of  a  contract,  in  the  case  of 
title  deeds  or  specific  chattels  of  peculiar  value  detained 
from  the  legitimate  owner,  by  directing  them  to  be  de- 
livered up  or  secured.^ 

The  remedies  at  law  for  such  unlawful  detainer  are  by 

(«)  White  ».  Cuddon,  8  CI.  &  F.  766,  792  ;  Lord  Brooke  v.  Rounthwaite, 
5  Hare  298. 

{w)  Fildes  V.  Hooker,  3  Mad.  193  ;  Aylett  v.  Ashton,  1  M.  &  C.  105, 114 
2  Surg.  V.  &  P.  c.  X,  8.  2. 

*  See  TIernan  ».  Roland,  15  Penn.  St.  441. 

'  A  Court  of  Chancery  will  notxiecree  compensation  as  a  distinct  head 
of  equitable  relief;  but  when  the  jurisdiction  of  the  Court  has  once 
attached  by  reason  of  mistake,  part-performance,  or  other  equitable  ground 
of  relief,  and  the  vendor  has  rendered  specific  performance  impossible, 
compensation  will  be  decreed.  See  Denton  v.  Stewart,  I  Cox  Ch.  258 ; 
Andrews  v.  Brown,  3  Cush.  134 ;  Harrison  v.  Deramus,  33  Ala.  463 ;  Bell 
V.  Thompson,  34  Id.  633  ;  Lee  v.  Howe,  27  Missouri  521 ;  Smith  v.  Fly,  24 
Tex.  345 ;  Phillips  v.  Thompson,  1  John.  Ch.  149 ;  Parkhurst  v.  Van  Cort- 
land, Id.  273;'Scott  V.  Bilgerry,  40  Miss  119.  See,  however,  Sainsbury  v. 
Jones,  5  Myl.  &  Cr.  1  ;  Todd  v.  Gee,  17  Ves.  278. 

See  McGowin  v.  Remington,  12  Penn.   St.  56 ;  Pooley  v.  Budd,   14 
Beav.  34. 


OF    ELECTION.  221 

an  action  of  trespass  for  the  unlawful  taking,  by  trover 
for  the  unlawful  conversion  to  the  defendant's  use,  or  by 
detinue  for  the  actual  detainer.  In  the  two  former  actions, 
the  judgment  at  law  is  for  damages  only ;  in  the  third  the 
judgment  is  for  restoration  of  the  (teed  or  chattel,  if  it 
can  be  found,  or  for  the  value,  if  it  has  been  destroyed  or 
eloigned.  The  remedy,  however,  though  in  terms  specific, 
*is  inferior  to  that  by  suit  in  equity;  for  there  is  r^qn-i 
no  power  to  prevent  destruction  or  defacement 
whilst  the  suit  is  pending.  The  defects  thus  existing  in 
the  remedy  at  law  originate  a  jurisdiction  in  the  Court  of 
Chancery,  and  suits  have  accordingly  been  entertained  for 
recovery  of  an  ancient  silver  altar,  claimed  by  the  plaintiff 
as  treasure-trove;  for  a  cabinet  of  family  jewels;  for  a 
picture  or  statue  by  a  particular  artist;  and  for  other 
objects  of  a  like  kind.(:r) 

The  two  next  subjects  which  fall  under  our  notice  are 
tho^e  of  Election  and  of  Meritorious  or  Imperfect  Con- 
sideration; and  both  these  subjects  are  closely  connected 
with  the  principle  of  enforcing  those  contracts,  and  those 
only,  which  are  based  on  valuable  consideration. 

We  will  first  consider  the  equity  of  election.^     It  has 

(x)  Mitf.  117  ;  Duke  of  Somerset  v.  Cookson,  3  P.  W.  389 ;  Earl  of  Mac- 
clesfield r.  Davis,  3  Yes.  &  B.  16  •,  Wood  v.  Rowcliffe,  3  Hare  304. 

*  See  an  elaborate  discussion  of  the  Doctrine  of  Election  in  Spence  on  the 
Equitable  Jurisdiction  of  the  Court  of  Chancery,  Vol.  II,  page  585,  et  seq., 
Story's  Equity  Jurisprudence,  ?  1076,  et  seq. ;  Gretton  v.  Haward,  1 
Swanst.,  cited  post,  and  in  the  notes  to  Streatfield  v.  Streatfield,  1  Lead. 
Cas.  Eq.  273.  See,  also,  Hall  r.  Hall,  1  Bland  130,  134;  McGinnis  et  al. 
V.  McGinnis,  1  Kelly  496 :  Clay  and  Craig  v.  Hart,  7  Dana  1 ;  Field  r. 
Eaton,  1  Dev.  Ex.  283,  286 ;  Brown  ».  Ricketts,  3  John.  Ch.  553  ;  Allen  r. 
Getz,  2  Penna.  R.  311 ;  Marriott  v.  Sam  Badger,  5  Md.  306  t  McElfresh  v. 
Schley,  2  Gill  1S2  :  Cauffman  v.  CauflFman,  17  S.  &  R.  16 ;  Upshaw  v.  Up- 
shaw  and  Others,  2  Hen.  &  Munf.  381  ;  Pemberton  v.  Pemberton,  29  Mo. 
408  ;  A'an  Duyne  v.  Van  Duyne,  1  McCart.  49  ;  Lewis  r.  Lewis,  33  Penn. 


222  ADAMS's     DOCTRINE    OF     EQUITY. 

been  stated  as  a  general  principle  that  the  equity  to  en- 
force contracts  made  for  value,  is  extended  by  parity  of 
reasoning  to  cases  where  a  benefit  has  been  conferred  as 
the  consideration  for  an  act,  and  knowingly  accepted, 
although  the  part^  so  accepting  it  may  hot  be  bound  by 
an  actual  contract,  or  by  a  condition  of  performance  an- 
nexed to  the  gift.(^)  The  equity  of  election  is  analo- 
gous to  this.  It  applies  not  to  cases  of  contract  or  of 
conditional  gifts,  but  to  those  on  which  the  donor  of  an 
interest  by  will  has  tacitly  annexed  a  disposition  to  his 
bounty,  which  can  only  be  effected  by  the  donee's  assent, 
e.  g.,  where  a  testator  leaves  a  portion  of  his  property  to 
A.,  and  by  the  same  will  disposes  of  property  belonging 
to  A.  In  this  case  there  is  no  contract  by  A.  to  relin- 
quish his  own  property ;  nor  is*  there  any  condition  an- 
nexed to  the  testator's  gift,  as  a  term  of  its  acceptance, 
which  requires  him  to  do  so.  But  the  double  disposition 
made  by  the  testator  implies  that  he  did  not  intend  that 
A.  should  have  both  the  interests  ;  and  he  must  therefore 
r*QQ"|  elect  between  the  two,  *and  either  relinquish  his 
own  property  or  compensate  the  disappointed 
donee  out  of  the  property  bequeathed. 

From  the  definition  given  of  this  equity,  it  is  obvious 
that  two  things  are  essential  to  originate  it,  viz.,  1.  That 
the  testator  shall  give  property  of  his  own;  and  2.  That 
he  shall  profess  to  give  also  the  property  of  his  donee. 

1.  The  testator  must  give  property  of  his  own;  for 
otherwise,  if  the  recipient  refuse  to  give  effect  to  the  will, 
there  is  nothing  on  which  the  right  to  compensation  can 

{y)  Edwards  v.  Grand  Junction  Railway,  1  M.  &  C.  650  ;  Green  v.  Green, 
19  Ves.  665 ;  2  Meriv.  86  ;  Gretton  v.  Haward,  1  Swanst,  409,  427. 

St.  66  ;  Gable  v.  Daub,  40  Id.  217  ;  Reaves  v.  Garrett,  34  Ala.  558  ;  Brown 
V.  Brown,  L.  R.  2  Eq.  481  ;  Brown  v.  Pitney,  39  111.  468. 


OF    ELECTION.  223 

attach.  In  the  case,  therefore,  of  an  appointment  under 
a  power  which  is  void  as  to  some  appointees,  but  good  as 
to  the  rest,  the  doctrine  does  not  apply ;  but  the  legitimate 
appointees  may  claim  their  appointed  shares  without 
giving  effect  to  the  invalid  appointment.  If,  on  the  other 
hand,  they  have  independent  legacies  out  of  the  testator's 
property,  they  must  elect  between  those  legacies  and  their 
claim  to  the  fund  of  which  the  appointment  fails.  (^)^ 

2.  The  testator  must  profess  to  dispose  of  property  be- 
longing to  his  donee.-  There  will  therefore  be  no  equity 
for  election,  if  the  gift  of  such  property  be  not  judicially 
cognisable  ;  as,  for  example,  where,  previously  to  the  late 
Wills  Act,  a  will  was  made  by  an  infant,  or  without  proper 
attestation,  professing  to  devise  real  estate,  the  heir-at-law 
might  take  a  personal  legacy  under  such  will,  and  yet 
dispute  the  validity  of  the  devise ;  for  such  a  will  was 
judicially  read,  as  if  the  devise  were  blotted  out,  and  an 
intention  to  give  the  realty  did  not  appear,  (a)^     So  again, 

(2)  Bristowe  v.  Warde,  2  Ves.  Jr.  336  ;  Kater  r.  Roget,  4  Y.  &  C.  18. 
(a)  Brodie  v.  Barry,  2  V.  &  B.  127;  Sheddon  v.  Goodrich,  8  Ves.  481. 

*  Fowler's  Trusts,  27  Beav.  362. 

^  Melick  r.  Darling,  11  Ohio  351.  It  is  not  material,  however,  whether 
the  testator  knew  that  the  property  he  has  attempted  to  dispose  of  belonged 
to  another,  or  whether  he  mistakingly  supposed  it  to  be  his  own  :  Stump  v. 
Findlay,  2  Rawle  168. 

'  Snelgrove  v.  Snelgrove,  4  Dessaus.  274 ;  Melchor  r.  Burger,  1  Dev.  & 
Bat.  Eq.  634.  So  where  a  will  is  made  in  one  state,  professing  to  pass  both 
real  and  personal  estate,  but  is  not  executed  so  as  to  pass  real  estate  in 
another  state,  the  heir  is  not  put  to  an  election  in  the  latter:  Maxwell  r. 
Maxwell,  2  De  G.,  M.  &  G.  705 ;  Jones  r.  Jones,  8  Gill  197.  See  also 
Kearney  r.  Macomb,  1  Green  (N.  J.)  189.  In  Maxwell  v.  Maxwell,  at 
supra.,  the  principle  was  stated  by  L.  J.  Knight  Bruce,  to  be  *'  that  the 
generality  merely,  or  the  universality  merely,  of  the  gift  of  the  property, 
is  not  suflBcient  to  demonstrate  or  create  a  ground  of  inference  that  the 
giver  meant  it  to  extend  to  property  incapable,  though  bis  own,  of  passing 
by  the  particular  act." 

But  a  case  for  election  may  arise,  even  where  a  will  is  incapable  of 


224  ADAMS's     DOCTRINE     OF     EQUITY. 

where  a  feme  coverte  has  made  a  will  in  exercise  of  a  tes- 
tator's power  of  appointment,  and  assumed  to  dispose  of 
other  property  also,  the  gift  of  such  other  property  is 
judicially  non-existent;  and  her  husband  may  take  a 
benefit  under  the -appointment,  without  relinquishing  his 
marital  right.  (^)  The  same  principle  applies  where  a 
testator,  having  a  limited  power  of  appointment,  exer- 
r*Q4-1  cises  it  in  favor  of  the  *legal  object,  and  then  at- 
tempts to  cut  down  the  gift  in  violation  of  the 
power.  In  this  case,  the  original  legal  disposition  is  not 
affected  by  the  subsequent  illegal  one ;  but  the  will  is 
read  as  if  it  stopped  at  the  original  gift.  A  claimant, 
therefore,  under  it,  though  in  one  sense  claiming  against 
the  illegal  gift,  is  in  law  claiming  in  conformity  with  the 
will,  and  need  not  elect  in  respect  of  other  interests 
w^hich  he  may  take  under  it.(c)^ 

If,  on  the  other  hand,  the  devise  is  in  itself  a  valid  de- 
vise, but  is  ineffectual  to  pass  the  particular  property,  the 
doctrine  of  election  is  not  excluded.  Such,  for  example, 
was  the  case  where  a  will  of  earlier  date  than  1  Vict.  c. 
26,  professed  to  extend  to  after-acquired  lands.  The 
lands  did  not  pass  by  the  will ;  but  if  the  heir  claimed  an 
interest  under  it,  he  was  put  to  his  election,  (t?)^ 

[h)  Rich  V.  Cockell,  9  Ves.  369. 

(c)  Carver  v.  Bowles,  2  R.  &  M.  301  ;  Kater  v.  Roget,  4  You.  &  Col.  18 ; 
[Blacket  v.  Lamb,  14  Beav.  482.] 

[d)  Churchman  v.  Ireland,  4  Sim.  520  ;  1  Russ.  &  My.  250  ;  Thelluson  v. 
Woodward,  13  Ves.  209. 

passing  realty,  as  where  the  legacy  and  devise  cannot  be  separated. 
Thus  where,  in  such  case,  the  real  estate  is  devised  away,  but  charged 
with  a  legacy  for  the  heir-at-law,  the  latter  must  elect:  Nutt  v,  Nutt,  1 
Freem.  Ch.  128. 

^  So  where  there  is  a  recital  of  an  intention,  under  a  belief  on  the  part 
of  the  testator  that  is  erroneous,  there  is  not  a  case  of  election:  Box  v. 
Barrett,  L.  R.  3  Eq.  244. 

2  s.  p.  McElfresh  v.  Schley,  2  Gill  182 ;  contra  City  of  Philadelphia  v. 


OF    ELECTION,  225 

/ 

In  accordance  with  the  same  principle,  there  is  no  equity 
for  election,  if  the  testator  has  himself  a  partial  interest, 
which  might  satisfy  the  terms  of  his  gift  ;^  e.  g.,  where  a 
testator  gives  a  legacy  to  his  widow  entitled  to  dower, 
and  devises  his  real  estate  to  another  person,  under  cir- 
cumstances to  which  the  Dower  Act  does  not  apply.  If 
such  devise  be  expressly  made  free  of  dower,  or  if  its 
nature  be  inconsistent  with  the  contrary  hypothesis,  the 
widow  is  bound  to  elect.  But  it  is  otherwise,  if  the  de- 
vise be  in  general  terms.  For  it  may  be  intended  as  a 
gift  of  what  was  strictly  his  own,  viz.,  the  estate  subject 
to  dower;  and  it  will  not  be  needlessly  presumed  that  he 
intended  to  dispose  of  another's  property,  (e)^     For  the 

(e)  Birmingham  v.  Kirwan,  2  Sch.  &  Lef.  444;  Holdich  v.  Holdich,  2 
N.  C.  C.  18;  Ellis  V.  Lewis,  3  Hare  310;  1  Jarm.  on  Dev.  366,  408; 
Lowes  V.  Lowes,  5  Hare  501. 

Davis,  1  Whart.  490,  though  the  point  was  not  directly  decided.  Where, 
however,  it  is  not  clear  on  the  face  of  the  will  that  the  testator  intended  to 
refer  to  after-acquired  lands,  it  is  not  a  case  for  election.  See  1  Lead. 
Cas.  Eq.  407,  American  note;  Hall  ».  Hall,  2  McCord  Ch.  269;  City  of 
Philadelphia  v.  Davis,  ut  sup.     See  Schroder  v.  Schroder,  18  Jur.  987. 

^  It  must  be  clear,  beyond  reasonable  doubt,  that  the  testator  designedly 
assumed  to  dispose  of  the  property  of  the  beneficiary,  and  did  not  intend 
to  dispose  of  any  expectant  or  other  interest  of  his  own  in  the  property: 
Havens  v.  Sackett,  15  N.  Y.  365  ;  Miller  v.  Thurgood,  33  Beav.  499.  A 
devise  of  an  estate  does  not  impart  a  devise  free  of  encumbrances,  so  as  to 
put  the  encumbrancers  to  their  election w  Stephens  v.  Stephens,  3  Drew. 
697 ;  1  De  G,  &  J.  62.  The  rule  as  to  election  is  applicable  only  as  be- 
tween a  gift  under  a  will  and  a  claim  dehors  the  will  and  adverse  to  it,  and 
not  as  between  one  clause  in  a  will  and  another  clause  in  the  same  will : 
"VVollaston  ».  King,  L.  R.  8  Eq.  165. 

^  See,  as  to  the  application  of  the  doctrine  of  election  to  the  case  of  a  de- 
vise or  bequest  made  to  the  widow  of  a  testator,  when  the  estate  of  which 
she  is  dowable,  is  disposed  to  orthers :  Adsit  v.  Adsit,  2  Johns.  Ch.  448, 
and  Gordon,  Adm'r.,  v.  Stevens,  2  Hill  Ch.  46;  Brown  v.  Caldwell,  1  Speer's 
Eq.  322;  Whilden  t\  Whilden,  Riley's  Ch.  205;  Timberlake  r.  Parrish's 
Ex'r.,  5  Dana  345 ;  Kinsey  v.  Woodward,  3  Harring.  459 ;  Smith  r.  Kniskern, 
4  John.  Ch.  9 ;  Wood  v.  Wood,  5  Paige  597 ;  Havens  v.  Havens  et  al.,  1 
15 


226  ADAMS's    DOCTRINE    OF    EQUITY. 

same  reason,  it  has  been  decided,  that  the  doctrine  of 
election  does  not  apply  to  creditors,  but  that  they  may 
take  the  benefit  of  devise  of  lands  for  payment  of  debts, 
and  at  the  same  time  enforce  their  legal  claims  against 
P^qr-i  personal  estate,  to  the  exclusion  of  ^specific  lega- 
tees. For  it  will  be  presumed  that  the  testator 
bequeathed  no  more  than  what  really  belonged  to  him,  and 
that  the  legatees  were  to  take  the  personal  estate  subject 
to  its  ordinary  liabilities.  (/)^ 

In  like  manner,  no  case  of  election  will  arise,  if  the  tes- 
tator shows  by  the  terms  of  his  gift,  that  he  is  doubtful 
whether  the  property  in  fact  belongs  to  him,  and  that 
he  only  intends  to  dispose  of  it,  if  it  is  his  own;  e.  g., 
if  he  directs  a  different  disposition,  in  the  event  of  its 
proving  that  he  has  no  power  to  give,  or  if  he  expressly 
makes  the  deposition,  in  case  he  has  power,  or  so  far  as 
he  lawfully  can  or  may.(^) 

[f)  Kidney  v.  Coussmaker,  12  Ves.  136. 

( g)  Bor.  V.  Bor.,  3  B.  P.  C.  by  Toml.  167 ;  Church  v.  Kemble,  5  Sim.  525. 

Sandf.  Ch.  325 ;  Fuller  v.  Yates,  8  Paige  325  ;  Sandford  v.  Jackson,  10  Id. 
266  ;  Webb  v.  Evans,  1  Binney  565:  Kennedy  v.  Nedrow,  1  Dal.  415  ;  Snel- 
grove  V.  Snelgrove,  4  Dessaus.  274 ;  Ambler  v.  Norton,  4  H.  &  M.  23 
Tobias  v.  Ketchum,  36  Barb.  304 ;  Bending  v.  Bending,  3  K.  &  J.  257 
Bradford  v.  Kents,  43  Penn.  St.  474;  Pollard  v.  Pollard,  1  Allen  490 
Dodge  V.  Dodge,  31  Barb.  413  ;  Pemberton  v.  Pemberton,  29  Missouri  408 
Sandoe's  Appeal,  65  Penn,  St.  314 ;  Carder  v.  Commissioners  of  Fayette 
Co.,  16  Ohio  353.     This  subject  has  been  very  fully  and  ably  discussed  in 
the  notes  to  Streatfield  v.  Streatfield,  1  Lead.  Cas.  Eq.  225. 

^  That  the  doctrine  of  election  does  not  apply  to  creditors,  has  been  de- 
nied as  a  general  rule  in  Pennsylvania:  Irwin  v.  Tabb,  17  S.  &  R.  419  5 
Adlum  V.  Yard,  1  Rawle  163  ;  and  it  has  been  frequently  held  there  that 
creditors  taking  a  benefit  under  an  assignment,  fraudulent  in  law,  elect  not 
to  disaffirm  it.  See  Lanah«.n  p.  Latrobe,  7  Md.  268.  It  is  otherwise, 
however,  as  to  assignments  fraudulent  in  fact :  Hays  v.  Heidelberg,  9  Penn. 
St.  207  ;  and  an  inclination  was  there  manifested  not  to  carry  the  doctrine 
of  Adlum  V  Yard  any  further.  The  actual  point  decided  in  Kidney  v. 
Coussmaker,  as  stated  in  the  text,  however,  was  never  questioned  in  any 
of  the  cases.     See  also  Waters  v.  Howard,  1  Md.  Ch.  112. 


OF    ELECTION.  227 

It  was  at  one  period  doubted  whether  evidence  dehm's 
the  will  itself  was  not  admissible  in  cases  of  election  in 
contravention  of  the  ordinary  rule  of  law,  for  the  purpose 
of  showing  that  a  testator  in  making  a  bequest  of  his 
estate,  intended  to  include  property  which  was  not  strictly 
his  own,  although  in  some  sense  subject  to  his  dominion; 
e.  g.,  lands  of  which  he  was  tenant  in  tail,  or  leaseholds 
and  mortgages  belonging  to  his  wife.  The  weight  of  au- 
thority, however,  seems  to  be  against  its  admissibility, 
and  in  favor  of  abiding  by  the  ordinary  rule.(^)^ 

If  both  the  requisites  concur,  which  have  been  here 
explained;  if  the  testator  has  conferred  a  benefit  out  of 
his  own  propert}^,  and  has  professed  to  dispose  of  the 
property  of  the  donee,  the  equity  of  election  arises,  and 
the  donee  must  choose  between  the  conflicting  interests. 

The  election  may  be  either  express  or  implied :  and  if 
not  made  voluntarily,  may  be  compelled  by  decree.  But 
the  electing  party  is  entitled  to  know  the  value  of  both 
interests;  and  the  mere  fact  that  the  benefit  has  been 
conferred,  or  even  that  it  has  been  accepted  in  ignorance 
of  the  *conveyance,  does  not  bind  his  right.^  If,  r*qp-i 
therefore,  a  bill  be  filed  against  him,  he  may  insist 

(A)  Druce  v.  Dennison,  6  Ves.  385 ;  Dummer  v.  Pitcher,  2  M.  &  K.  262 ; 
Clementson  v.  Gandy,  1  K.  309 ;  1  Jarm.  on  Wills  391 5  Wigram  on  Wills  39. 

^  The  intention  to  raise  an  election  must  clearly  appear  on  the  face  of 
the  will :  Jones  r.  Jones,  8  Gill  197 ;  McElfresh  v.  Schley,  2  Id.  182 ;  Waters 
V.  Howard,  1  Md.  Ch.  112;  Wilson  v.  Amy,  1  Dev.  &  Batt.  £q.  376. 
It  cannot  be  raised  by  evidence  dehors :  City  of  Phila.  v.  Davis,  1  Whart. 
490 ;  Timberlake  v.  Parish,  5  Dana  345 ;  Waters  c.  Howard,  1  Md.  Ch. 
112.  Though  there  will  be  no  objection  to  such  evidence  so  far  as  it  goes 
only  to  show  the  state  and  circumstances  of  the  property:  Waters  c. 
Howard,  ut  sup. 

*  Snelgrove  v.  Snelgrove,  4  Dessaus.  274 ;  Adsit  v.  Adsit,  2  John.  Ch. 
4^8  ;  Pinckney  f.  Pinckney,  2  Rich.  Eq.  219 ;  Upshaw  r.  Upshaw,  2  lien. 
&  Munf.  381 ;  Duncan  v.  Duncan,  2  Yeates  302 ;  Sopwith  c.  Maughan,  30 


228  ADAMS's    DOCTRINE    OF    EQUITY. 

on  the  values  being  ascertained  before  a  decree  to  elect  is 
made;  or  he  may  himself  as  plaintiff  sustain  a  bill  to 
have  the  accounts  taken  and  the  property  ascertained.  (/) 
If  he  be  incompetent  to  make  his  election,  as  in  the  case 
of  infancy  or  coverture,  the  Court  will  do  so  in  his  stead, 
and  will  refer  it  to  the  Master  to  inquire  what  election 
should  be  made.(^)^ 

The  principle  which  gives  the  right  of  choice  to  the 
donee  necessarily  leads  to  the  result  that  his  election,  when 
made,  binds  himself  alone,  and  does  not  affect  the  inter- 
ests of  donees  in  remainder.  A  contrary  election  by 
them  may  possibly  create  some  inconvenience ;  but  this 

(j )  Pusey  V.  Desbouvre,  3  P.  W.  315 ;  Dillon  v.  Parker,  1   Swans.  359, 
381. 
[k)  Gretton  v.  Haward,  1  Swanst.  413,  n. 

Beav.  235 ;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834 ;  Douglas  v.  Webster,  12 
lb.  617.  An  election,  however,  made  in  ignorance  of  the  law,  b«t  with 
full  knowledge  of  all  material  facts,  as  in  the  case  of  a  widow  taking 
under  her  husband's  will  to  the  exclusion  of  dower,  is  binding,  unless  there 
were  fraud  or  imposition  :  Light  v.  Light,  21  Penn.  St.  407  ;  Bradfords  v. 
Kents,  43  Id.  475.  An  election  once  made,  though  bj'  matter  in  pais,  is 
binding:  Upshaw  r.  Upshaw,  2  Hen.  &  Munf.  381;  Caston  ».  Caston,  2 
Rich.  Eq.  1 ;  Buist  v.  Dawes,  3  Id.  281.  As  to  what  circumstances  will 
amount  to  proof  of  such  election  where  the  party  to  elect  has  remained  in 
possession  of  both  estate :  spe  Padbury  v.  Clark,  2  M.  &  G.  298 ;  2  H. 
&  Twells  341,  s.  c.  See  the  result  of  the  authorities  in  this  point  stated 
by  the  Master  of  the  Rolls  in  Miller  v.  Thurgood,  33  Beav.  496 ;  also 
Fitzsimons  «.  Fitzsimons,  28  Id.  417;  Honywood  r.  Forster,  30  Id,  14; 
Howells  V.  Jenkins,  2  John.  &  II.  706 ;  1  De  G.,  J.  &  Sm.  617  ;  Marriott  v. 
Sam  Badger,  5  Md.  306;  Spread  v.  Morgan,  11  H.  L.  Cas.  588;  Whit- 
ridge  V.  Pajkhurst,  20  Md.  85.  Where  both  rights  are  legal,  an  election 
operates  as  an  estoppel  at  law :  Buist  v.  Dawes,  3  Rich.  Eq.  281.  When 
a  married  woman  can  elect :  see  Barrow  v.  Barrow,  4  K.  &  J.  409, 

1  See  Robertson  v.  Stevens,  1  Ired.  Eq.  247  ;  Sledds  v.  Carey,  11  B. 
Monr.  181  ;  Addison  v.  Bowie,  2  Bland  606  ;  Kavanaugh  v.  Thompson,  16 
Ala.  817  ;  McQueen  v.  McQueen,  2  Jones  Eq.  16.  An  election  by  a  feme 
covert  may  be  presumed  after  a  great  lapse  of  time  :  Tiernan  v.  Roland, 
15  Penn.  St.  429. 


OF    ELECTION.  229 

is  no  ground  for  allowing  a  preceding  taker  to  bind  their 
rights,  or  for  depriving  them  of  an  independent  election 
as  their  respective  interests  accrue.  Nor  will  such  do- 
nees be  affected  in  their  choice  by  acquiring  derivative 
interests  under  the  first  elector;  for  such  derivative  in- 
terests are  incidental  to  his  estate,  and  not  to  their  own. 
If,  for  instance,  a  married  woman  elect  to  take  an  estate 
of  inheritance  against  a  will,  her  husband  may  have  his 
curtesy  of  that  estate,  and  nevertheless  claim  a  legacy 
under  the  will.(/) 

The  effect  of  election  is  not  to  divest  the  property  out 
of  the  donee,  but  to  bind  him  to  deal  with  it  as  the  Court 
shall  direct. 

If  he  elects  to  relinquish  his  own  property,  conforming 
throughout  to  the  testator's  disposition,  he  is  said  to  take 
under  the  will,  and  must  convey  accordingly.  If  he 
elects  to  retain  it,  he  is  said  to  take  against  the  will 
and  must  convey  the  estate  devised  to  him  to  the  disap- 
pointed donee,  or  must  compensate  him  thereout  for  his 
disappointment.  With  respect,  however,  to  this  last 
point,  some  doubt  exists.  And  it  appears  to  be  uncertain 
whether  the  consequence  of  an  election  to  take  against 
the  will  is  confined  to  a  liability  *to  compensate,  r^qy-] 
or  is  a  forfeiture  of  the  property  devised.^     In  the 

(Z)  Cavan  v.  Pulteney,  2  Ves.  Jr.  544;  Ward  v.  Baugh,  4  Ves.  623- 

'  This  doubt  seems  now  to  be  settled  in  England  in  favor  of  compensa- 
tion, and  against  a  forfeiture :  Spread  v.  Morgan,  11  H.  L.  Cas.  688.  In 
this  country,  it  has  frequently  been  held,  that  it  is  compensation  and  not 
forfeiture,  upon  which  equity  proceeds  in  cases  of  this  kind  :  Cauffman  v. 
Cauffman,  17  S.  &  R.  16  5  City  of  Philadelphia  v.  Davis,  1  Whart  490 ; 
Stump  V.  Findlay,  2  Rawle  168:  Key  v.  Griffin,  1  Rich.  Eq.  67  ;  Marriott 
r.  Sam  Badger,  5  Md.  306  ;  and  the  general  rule  was  admitted  so  to  be,  in 
Lewis  V.  Lewis,  13  Penn.  St.  82.  But  in  this  last  case,  it  was  held,  that 
where  the  estate  retained,  is  greater  in  value  than  that  devised,  compen- 


230  ADAMs's    DOCTRINE    OF    EQUITY. 

case  of  a  contract  for  valuable  consideration,  the  result 
would  be  clearly  forfeiture ;  for  if  the  party  claiming  will 
not  give  the  price,  he  must  relinquish  the  benefit  for  which 
it  was  to  be  paid.  But  in  the  case  of  election  it  seems  to 
be  otherwise.  For  the  equity  does  not  originate  in  a  gift 
on  consideration,  but  in  the  intention  presumable  from 
the  double  gift,  that  the  disappointed  donee  shall  have 
some  benefit.  This  intention  is  at  once  effected  if  com- 
pensation be  the  result ;  but  will  be  manifestly  defeated 
by  forfeiture,  unless  the  Court  can  imply  a  gift  to  the  dis- 
appointed donee,  for  which  the  testator  has  given  no  au- 
thority, or  can  decree  the  heir  taking  as  on  an  intestacy, 
to  be  a  constnictive  trustee  for  him.  It  seems,  however, 
difficult  to  conceive  how  the  heir  can  be  thus  affected  with 
a  trust  on  the  election  of  a  devisee,  which  would  not  have 
attached  if  there  had  been  an  express  condition  of  forfeit- 
ure in  the  will,  or  if  the  devisee  instead  of  electing  had 
disclaimed  the  interest  devised.  (?w) 

The  next  equity  which  requires  notice  is  that  of  meri- 
torious, or  imperfect  consideration. 

The  doctrine  of  meritorious  consideration  originates  in 
the  distinction  between  the  three  classes  of  consideration 
on  which  promises  may  be  based ;  viz.,  valuable  consider- 

(m)  2  Sug.  on  Powers  145;  1  Roper,  Hus.  &  Wife,  by  Jacob,  156  n. ; 
Gretton  r.  Haward,  1  Sw.  433  n»;  2  Roper  on  Legacies  571-8;  Kerr. 
Wauchope,  1  Bligh  1. 

sation  wonld  be  useless,  and  therefore  a  decree  shoivid  be  made  in  favor  of 
the  disappointed  devisee  directly,  on  the  ground  of  forfeiture ;  and  that, 
as  a  consequence,  under  the  peculiar  system  of  Pennsylvania,  he  could  re- 
cover in  ejectment-  In  Marriott  v.  Sam  Badger,  5  Md.  306,  where  a  slave 
belonging  to  a  legatee  was  emanciated  by  will,  it  was  held  that  no  case  of 
election  arose,  because,  the  principle  being  compensation,  if  the  slave  re- 
ceived the  legacy  as  compensation,  his  master  would  be  immediately  en- 
titled to  it  again,  Jure  domini. 


OF    IMPERFECT    CONSIDERATION.  231 

ation,  tlie  performance  of  a  moral  duty,  and  mere  voluntary 
bounty.  The  first  of  these  classes  alone  entitles  the 
promisee  to  enforce  his  claim  against  an  unwilling  pro- 
misor ;  the  third  is  for  all  legal  purposes  a  mere  nullity 
until  actual  performance  of  the  promise. 

The  second,  or  intermediate  class,  is  termed  meritorious, 
and  is  confined  to  the  three  duties  of  charity,^  of  payment 
of  creditors,  and  of  maintaining  a  wife  and  children;  and 
under  this  last  head  are  included  provisions  made  for  per- 
sons, not  being  children  of  the  party  promising,  but  in 
*relation  to  whom  he  has  manifested  an  intention  rH:Qo-i 
to  stand  in  loco  parentis,  in  reference  to  the  parental 
duty  of  making  provision  for  a  child,  (w) 

Considerations  of  this  imperfect  class  are  not  distin- 
guished at  law^  from  mere  voluntary  bounty,  but  are  to  a 
modified  extent  recognised  in  equity.  And  the  doctrine 
with  respect  to  them  is,  that  although  a  promise  made 
without  a  valuable  consideration  cannot  be  enforced  against 
the  promisor,  or  against  any  one  in  whose  favor  he  has 
altered  his  intention,  yet  if  an  intended  gift  on  meritorious 
consideration  be  imperfectly  executed,  and  if  the  intention 
remains  unaltered  at  the  death  of  the  donor,  there  is  an 
equity  to  enforce  it  in  favor  of  his  intention,  against  per- 
sons claiming  by  operation  of  law  without  an  equally 
meritorious  claim. 

The  principal  applications  of  this  equity  are  in  supply- 
ing surrenders  of  copyholds  against  the  heir,  and  in  sup- 
porting defective  executions  of  powers,  when  the  defect 
is  formal,  against  the  remaindermen. 

(n)  Perry  v.  Whitehead,  6  Ves.  544;  Ex  parte  Pye,  18  Id.  140;  Powys 
r.  Mansfield,  3  M.  &  C.  359  ;  Pym  v.  Lockyer,  5  Id.  29. 

'  Equity  will  relieve  against  the  defective  execution  of  a  power  in  favor 
of  a  charity  :  Innes  v.  Sayer,  3  Macn.  &  Gord.  600  :  affirming  s.  c.  7  Hare 
377. 


232  ADAM.S*S    DOCTRINE    OF    EQUITY. 

The  equity  for  supplying  surrenders  of  copyholds  origi- 
nates in  the  doctrine,  that  a  copyhold  does  not  pass  by 
grant  or  devise,  but  by  a  surrender  into  the  hands  of  the 
lord  to  the  use  of  the  grantee,  or  of  the  will.  In  the  one 
case,  the  grantee  is-  entitled  to  immediate  admission  ;  in 
the  other,  the  person  designated  in  the  will  is  entitled  to 
admission  on  the  testator's  death.  If  a  grant  or  devise 
were  made  without  a  previous  surrender,  it  was  formerly 
inoperative  at  law ;  but  if  it  were  made  for  meritorious 
consideration,  the  surrender  might  be  supplied  in  equity. 
The  jurisdiction  thus  to  supply  a  surrender  existed  whether 
the  gift  were  by  deed  or  will,(o)  but  it  was  ordinarily 
called  into  exercise  in  the  case  of  wills ;  and  it  is  now 
rendered  of  little  practical  importance  by  the  enactment 
that  all  real  estate  may  be  devised  by  will,  and  that  copy- 
p^qq-i  holds  *shall  be  included  under  that  description, 
notwithstanding  that  the  testator  may  not  have 
surrendered  them  to  the  use  of  his  will,  nor  have  even 
been  himself  admitted  to  them.(jo) 

The  exercise,  therefore,  of  the  equity  in  question  is  now 
principally  confined  to  defective  executions  of  powers.^ 

(o)  Rodgers  v.  Marshall,  17  Ves.  294.  {p)  1  Vict.  c.  26,  s.  3, 

^  Equity  relieves  against  the  defective  execution  of  a  power,  in  favor  of 
purchasers,  creditors,  children,  or  a  wife :  Schenck  v.  Ellingwood,  3  Edw. 
Ch.  175 ;  Porter  v.  Turner,  3  S.  &  R.  108;  Dennison  v.  Goehring,  7  Penn. 
St.  175  ;  Bradish  v.  Gibbs,  3  John.  Ch.  523.  Upon  a  somewhat  analogous 
principle,  it  is  held,  that  where  a  person  has  a  general  power  of  appoint- 
ment over  property,  which  he  actually  exercises,  either  by  deed  or  will, 
he  thereby  subjects  the  property  to  the  claims  of  his  creditors  in  prefer- 
ence to  the  claims  of  his  appointee.  But  a  Court  of  equity  will  not  inter- 
fere, unless  the  party  upon  whom  the  power  has  been  conferred,  or  to 
whom  it  is  tendered,  has  done  some  act  indicating  an  intention  to  execute 
it ;  and  the  power  of  appointment  must  be  a  general  power.  A  power  of 
appointment  is  general,  or  not,  within  the  meaning  of  the  rule,  according 
to  the  person  or  uses  to  which  the  property  may  be  appointed  under  it, 


OF    IMPERFECT    CONSIDERATION.  233 

And  the  powers  to  which  it  applies  are  those  which  have 
been  created  by  way  of  use,  as  distinct  from  bare  authori- 
ties conferred  by  law.  Acts  done  under  authorities  of 
this  latter  kind,  as,  for  example,  leases  or  conveyances  by 
a  tenant  in  tail,  are  only  binding  when  regular  and  com- 
plete. The  principle  of  the  distinction  appears  to  be  that 
powers  limited  by  use  -are  mere  reservations  out  of  the 
original  ownership,  constituting  the  donee  a  quasi  owner, 
and  the  remainderman  a  quasi  heir;  and  consequently 
that,  in  conformity  with  this  hypothesis,  the  donee's  con- 
tracts for  value  ought  to  bind  the  remainderman,  and  his 
meritorious  intention,  if  unaltered,  ought  to  have  the  same 
effect.  The  soundness  of  this  equity  has  been  questioned 
by  Sir  William  Grant,  and  its  principle  seems  difficult  to 
sustain.  For  the  power  given,  though  doubtless  in  some 
sense  a  modified  ownership,  does  not  confer  an  absolute 
right  to  dispose  of  the  property,  but  a  right  to  do  so  in  a 
specific  way.  And  the  chance  that  the  power  may  never 
be  executed,  or  that  it  may  not  be  executed  in  the  man- 


and  not  according  to  the  time  when  its  exercise  takes  effect  in  possession, 
or  the  instrument  by  which  its  exercise  is  to  be  manifested.  If  a  party 
may  by  will  or  deed  dispose  of  property,  to  whom,  and  for  such  uses  as  he 
pleases,  to  take  effect  at  his  death,  and  may  thus  apply  it  to  the  payment 
of  his  debts,  or  direct  any  other  disposition  to  be  made  of  it,  he  has  as 
great  a  power  of  disposal  as  he  has  of  his  own  estate  to  take  effect  at  the 
same  time,  and  having  undertaken  to  exercise  the  authority,  it  may  be 
treated  as  a  part  of  his  estate  upon  his  decease,  so  far  as  to  require  that 
that  he  should  first  provide  for  his  debts  out  of  it ;  and  if  he  fails  so  to  do, 
equity  may  apply  it  as  a  part  of  his  estate,  so  far  as  it  is  necessary  for  that 
purpose  :  Johnson  v.  Cushing,  15  N.  H.  298  ;  Fleming  v.  Buchanan,  3  De 
G.,  M.  &  G.  976  ;  see  2  Sug.  on  Powers,  7th  ed.  27.  But  it  would  appear 
in  England  to  be  the  opinion  that  equity  will  not  aid  a  defective  execution 
in  favor  of  a  stranger,  for  the  benefit  of  the  creditors  of  the  appointor  :  2 
Sug.  102.  This  doctrine  of  treating  a  fund  appointed  to  a  volunteer,  as 
assets  for  creditors,  was  strongly  disapproved  by  Gibson,  C.  J.,  in  Comm. 
v.  Duffield,  12  Penn.  St.  277. 


234  ADAMS'S    DOCTRINE    OF    EQUITY. 

ner  prescribed,  is  an  advantage  given  to  the  remainderman. 
If,  therefore,  his  interest  is  to  be  regarded,  it  is  difficult  to 
see  why  he  should  be  bound  by  any  other  than  the  pre- 
scribed act ;  for  he  is  a  stranger  to  any  equity  or  consider- 
ation. If,  on  the  other  hand,  his  interest  is  subordinate  to 
the  donee  of  the  power,  the  intention  of  such  donee  ought 
to  be  sustained,  whatever  be  the  consideration  on  which 
it  rests.  The  objection,  however,  which  is  noticed  in  these 
remarks,  appears  not  to  be  peculiar  to  the  execution  of 
powers,  but  to  apply  generally  to  the  equity  of  meritorious 
r*l  001  consideration,  and  to  the  principle  of  enforcing  *a 
gift  on  the  ground  of  intention  alone,  as  distinct 
from  any  binding  contract,  and  yet  inquiring  into  the  con- 
sideration on  which  that  intention  was  based.  (§') 

Whatever  opinion  may  be  entertained  as  to  the  original 
soundness  of  the  equity,  there  is  no  question  that  it  is  es- 
tablished by  precedent;  but  it  is  confined  to  cases  of 
execution  formally  defective,  or  of  contract  amounting  to 
such  defective  execution.  If  there  be  no  such  execution 
or  contract  the  Court  cannot  interpose  ;  ^  for,  unless  when 
the  power  is  in  the  nature  of  a  trust,  the  donee  has  his 
choice  whether  to  execute  it  or  not;  and  if  he  does  not 
execute  or  attempt  to  execute,  there  is  no  equity  to  exe- 
cute for  him.  If  the  defect  be  not  formal,  but  in  the 
substance  of  the  power,  the  execution  cannot  be  aided 
in  equity;  for  such  aid  would  defeat  the  intention  of  the 
donor.  A  power,  for  example,  which  is  given  to  be  exe- 
cuted by  deed,  may  be  effectuated  where  the  execution 

(?)  Holmes  v.  Goghill,  7  Ves.  499 ;  12  Id.  206  ;  2  Sug.  on  Powers,  c.  10. 

^  Lippincott  v.  Stokes,  2  Hals.  Ch.  122,  If  the  court  is  left  in  doubt 
whether  an  execution  was  at  all  intended,  it  will  not  interfere  ;  such  an 
intention  must  clearly  appear :  Id.  See,  also,  Drusadow  v.  Wilde,  63 
Penn,  St,  170  ;  Bingham's  Appeal,  64  Id.  345. 


OF    IMPERFECT    CONSIDERATION.  235 

has  been  by  will;  for  the  mode  of  execution  is  imma- 
terial. But  if  given  to  be  executed  by  will,  its  execution 
by  deed  is  altogether  invalid ;  for  it  was  meant  to  have 
continuance  until  the  death  of  the  donee,  and  the  deed,  if 
it  avail  at  all,  must  avail  to  its  destruction,  (r) 

The  rule  that  the  intention  must  remain  unaltered  does 
not  require  any  special  notice.  It  might  perhaps  have 
been  originally  contended,  that  the  very  fact  of  the 
appointment  being  left  imperfect  was  evidence  that  the 
intention  had  not  continued.  The  doctrine,  however,  is 
clearly  otherwise ;  but  if  there  be  any  subsequent  act  of 
the  donor  showing  that  his  original  intention  is  recalled, 
the  equity  is  at  an  end  ;  for  it  is  not  one  to  enforce  a  con- 
tract against  him,  but  to  effectuate  his  intention  in  his 
own  favor.  (^) 

The  only  remaining  requisite  is,  that  the  party  against 
whom  relief  is  asked  must  not  have  an  equally  merito^ 
rious  claim.  If,  therefore,  the  heir-at-law  or  remainder- 
man be  a  *child  unprovided  for,  it  seems  the  r*toi-i 
better  opinion  that  the  equity  will  not  be  enforced ; 
and  the  same  rule  prevails  where  relief  is  sought  against 
a  grandchild,  although  a  defective  execution  cannot  be 
supplied  in  his  favor.^  It  is  not,  however,  sufficient 
that  the  heir  is  disinherited ;  for  if  he  is  provided  for, 
it  is  immaterial  from  whom  the  provision  moved.^  Nor 
will  the  Court  inquire  into  the  relative  amount  of  the 
provisions  made;  for  on  that  point  the  parent  is  the  best 
judge.  (0 

(r)  ToUett ».  Tollett,  2  P.  W.  489 ;  Reid  ».  Shergold,  10  Ves.  370. 
(»)  Finch  r.  Finch,  15  Ves.  51 ;  Antrobus  v.  Smith,  12  Id.  39. 
it)  Rodgers  v.   Marshall,  17  Ves.  294  ;  Hills  v.  Downton,  5  Id.  557 ;  2 
Sug.  on  Powers,  c.  10,  and  App.  24. 

1  See  Porter  v.  Turner,  3  S.  &  R.  108. 

2  See  Morse  v.  Martin,  34  Beav.  500. 


236  ADAMS'S    DOCTRINE    OF     EQUITY. 

Another  class  of  cases,  to  which  the  doctrine  of  meri- 
torious consideration  applies,  are  those  where  a  man,  sub- 
ject to  a  moral  duty,  does  an  act  which  may  reasonably 
have  been  meant  in  satisfaction  of  that  duty;  and  is  there- 
fore presumed  to  have  so  intended  it. 

In  accordance  with  this  principle  acts,  which  as  be- 
tween strangers  would  bear  one  construction,  may  be 
construed  differently  where  meritorious  consideration 
exists;  e.  g.,  a  purchase  made  by  one  person  in  the  name 
of  another,  may  be  construed  an  advancement  in  favor  of 
a  child,  instead  of  a  resulting  trust  for  the  purchaser;  a 
legacy  may  be  construed  a  provision,  instead  of  mere 
bounty,  and  may  on  that  ground  bear  interest  from  the 
testator's  death.  And  in  like  manner,  if  there  be  a  prior 
legacy  bequeathed  or  promise  made  to  a  child,  a  subse- 
quent gift  or  legacy  ma}-  be  construed  as  a  substituted 
portion,  instead  of  being  a  cumulative  benefit. 

With  respect  to  purchases  by  one  person  in  the  name 
of  another,  it  has  been  already  stated  to  be  a  presump- 
tion of  law  that  the  purchase  is  intended  for  the  benefit 
of  the  purchaser,  and  that  the  conveyance  is  taken  on 
trust  for  him.  If,  however,  the  conveyance  is  taken  in 
the  name  of  a  child,  or  of  one  towards  whom  the  purchaser 
stands  in  loco  parentis,  a  counter  presumption  arises.  And 
the  prima  facie  probability  is,  that  the  purchase  was  meant 
as  a  provision  or  advancement  for  the   child  }     In  either 

^  The  general  rule  of  equity  is,  that  if  a  father  makes  a  purchase  in  the 
name  of  the  son,  even  though  illegitimate,  it  will  not  be  deemed  a  result- 
ing trust,  but  an  advancement:  Page  v.  Page,  8  N.  H.  187.  See,  how- 
ever, Tucker  v.  Burrow,  2  Hem.  &  M,  515;  and  see,  also,  Williams  v. 
Mears,  2  Disney  (Ohio)  604.  And  a  purchase  in  the  name  of  a  wife  or 
child  will  be  considered  an  advancement  until  the  contrary  is  proved,  and 
no  trust  will  result  to  the  husband  or  father.  It  seems  to  be  doubtful 
whether  the  doctrine  under  consideration  applies  to  purchases  made  by  a 


OF    IMPERFECT    CONSIDERATION.  237 

case  the  *doctrine  is  one  of  presumption,  not  of  the 

P1021 
construction  of  the  conveyance  itself.     There  is]  ^        J 

therefore  no  rule  of  law  which  prohibits  the  use  of  parol 
evidence,  either  to  counteract  or  to  support  the  presump- 
tion.^ But  the  only  difference  is  that,  in  the  case  of  a 
stranger,  the  onus  lies  on  those  who  allege  that  he  was 
intended  to  take  beneficially;  in  the  case  of  a  child,  it  lies 
on  those  who  allege  that  he  was  to  take  as  a  trustee,  (w) 
It  may,  for  instance,  be  shown  that  the  child  was  already 
fully  provided  for,  which  affords  a  presumption  that  no 
further  advancement  was  intended.     It  may  be  shown 

(n)  Hall  V.  Hill,  1  Conn.  &  L.  120. 

mother.  It  was  held  not  to  apply  in  Re  De  Visme,  2  De  G.,  J.  &  Sm.  17; 
but  Murphy  v.  Nathans,  46  Penn.  St.  508,  is  the  other  way.  See  also 
Garrett  v.  Wilkinson,  2  De  G.  &  Sm.  244 ;  Loyd  v.  Read,  1  P.  Wms.  607  ; 
Hill  on  Trustees  160,  4th  Am.  ed. ;  Astreen  v.  Flanagan,  3  Edw.  Ch.  279; 
Livingston  v.  Livingston,  2  John.  Ch.  537  ;  Sampson  v.  Sampson,  4  S.  &  R. 
329  :  Taylor  v.  James,  4  Dessaus.  1 ;  Partridge  v.  Havens,  10  Paige  618  ; 
KnouflFp.  Thompson,  16  Penn  St.  357  ;  Dennison  v.  Goehring,  7  Id.  182 
n. ;  Dudley  v.  Bosworth,  10  Humph.  12;  Tremper  v.  Barton,  18  Ohio  418  ; 
Taylor  v.  Taylor,  4  Gilm.  303  ;  Jackson  v.  Matsdorff,  11  John.  91  ;  Creed 
V.  Lancaster  Bank,  1  Ohio  St.  1 ;  Smith  v.  Smith,  21  Ala.  76.  Advance- 
ment is  always  a  question  of  intention:  Weaver's  Appeal,  63  Penn.  St. 
309 ;  Dillman  v:  Cox,  23  Ind.  440.  In  Sterry  v.  Arden,  1  John.  Ch.  261, 
a  voluntary  advancement  to  a  child  was  decided  to  be  void  against  a  pur- 
chaser, for  valuable  consideration,  with  only  constructive  notice ;  and  also 
where  the  notice  is  direct,  the  rule  seems  to  be  the  same.  In  equity 
the  estate  will  be  subjected  to  the  claims  of  the  parent's  creditors:  Guth- 
rie V.  Gardner,  19  Wend.  414:  Croft  v.  Arthur,  3  Dessaus.  223  ;  Jencks  v. 
Alexander,  11  Paige  619;  Abney  v.  Kingsland,  10  Ala.  355;  Doyle  r. 
Sleeper,  1  Dana  531 ;  Rucker  v.  Abell,  8  B.  Monr.  566  ;  and  in  Pennsylva- 
nia, the  land  may  be  levied  upon  directly :  Kimmel  v.  McRight,  2  Penn. 
St.  38.     See,  also,  ante,  p.  34,  in  note. 

'  This  presumption  of  advancement  may  be  rebutted  by  parol  evidence  : 
Dudley  r.  Bosworth,  10  Humph.  12;  Jackson  t'.  Matsdorff,  11  John.  91 ; 
Taylor  r.  Taylor,  4  Gilm.  303  ;  Tremper  r.  Burton,  18  Ohio  418.  The 
clearest  evidence  of  a  present  gift,  accompanied  by  exclusive  possession 
and  valuable  improvements,  are  necessary  to  establish  a  valid  parol  gift 
between  father  and  son  :  Miller  v.  Hartle,  53  Penn.  St.  108. 


238  ADAMS's    DOCTRINE    OF    EQUITY. 

that  at  the  time  of  the  purchase,  or  in  immediate  connec- 
tion therewith,  the  father  dealt  with  the  property  as  his 
own;  but  the  mere  receipt  of  rent,  which  may  possibly 
be  by  the  child's  permission,  will  not  alter  the  presump- 
tion; or  again,  it  may  be  shown  that  at  the  time  of  mak- 
ing the  purchase,  the  father  declared  his  intention  either 
against,  or  in  favor  of  the  presumed  advancement.^  It 
must  be  observed,  however,  that  the  only  question  to 
which  the  evidence  can  apply  is,  what  the  father  in- 
tended at  the  time  of  the  purchase,  and  not  whether  his 
intention  has  been  afterwards  changed.  And  for  this 
reason  his  subsequent  acts  and  declarations  cannot  be 
admitted  as  evidence  in  his  favor,  although  those  of  the 
child  might  be  so  used.(^;) 

With  respect  to  legacies,  the  distinction  between  lega- 
cies to  strangers  and  those  to  children  is  that,  in  the  case 
of  a  stranger,  the  legacy  is  considered  mere  bounty,  and 
is  dealt  with  by  the  ordinary  rules  of  law;  in  the  case  of 
a  child,  it  is  presumed  to  be  meant  as  a  provision  for  him, 
and  the  ordinary  rules  are  modified  by  that  presumption. 

One  instance  in  which  this  distinction  occurs,  regards 
the  period  from  which  interest  is  given.  The  ordinary 
rule  is  that,  if  the  testator  has  not  expressed  a  different 
|-^-|^o-i  *intention,  a  legacy  shall  bear  interest  from  the 
time  fixed  for  payment  of  the  principal,  or  if  no 
time  be  fixed,  then  from  the  end  of  a  twelvemonth  after 
the  testator's  death.     But  if  it  be  given  by  a  parent,  or 

[v)  Murless  v.  Franklin,  1  Sw.  13  ;  Grey  v.  Grey,  2  Id.  594 ;  Sidmouth 
V.  Sidmouth,  2  Bea.  447 ;  Scawin  v.  Scawin,  1  N.  C.  C.  65 ;  Skeats  v. 
Skeats,  2  Id.  9. 

^  Subsequent  declarations  of  the  father,  however,  are  incompetent: 
Tremper  v.  Barton,  18  Ohio  418.  They  were  admitted,  however,  in  Speer 
V.  Speer,  1  McCart.  240. 


OF    IMPERFECT    CONSIDERATION.  239 

by  one  who  stands  in  loco  parentis,  it  is  treated  as  a  gift 
by  way  of  provision;  and  the  legatee,  if  he  be  not  adult, 
and  there  be  no  other  provision  for  his  maintenance,  will 
be  allowed  interest  by  way  of  maintenance  from  the  time 
of  the  death,  (ef')^  Another  instance  of  the  same  distinc- 
tion occurs  in  the  case  of  successive  legacies  or  gifts,  viz., 
where  a  legacy  has  been  bequeathed  or  a  promise  made, 
which  has  been  followed  by  a  gift  inter  vivos,  or  by  a 
a  legacy  of  later  date. 

(tr)  Raven  v.  Waite,  1  Sw.  553 ;  Donovan  v.  Needham,  9  Bea.  164. 

^  Generally,  whea  no  time  is  fixed  by  a  will,  a  pecuniary  legacy  is  pay- 
able in  a  year  after  the  testator's  death,  and  not  before,  and  interest  is  not 
payable  until  the  end  of  the  year,  or  the  expiration  of  the  period  fixed  by 
the  will:  Sullivan  v.  Winthrop,  1  Sumner  1 ;  Eyre  v.  Grolding,  5  Binn.  475; 
Bitzer  c.  Hahn,  14  S.  &  R.  238.  So  in  Virginia  and  New  York:  Shobe  v. 
Carr,  3  Munf.  10 ;  Williamson  v.  "Williamson,  6  Paige  Ch.  298  ;  Marsh  v. 
Hague,  1  Edw.  Ch.  174.  See  Hammond  v.  Hammond,  2  Bland  306.  But 
where  a  legacy  is  given  to  an  infant  child  who  is  otherwise  unprovided  for, 
interest  will  be  allowed  from  the  testator's  death,  whether  a  time  is  fixed 
for  the  payment  of  interest  or  not,  and  this  doctrine  applies  to  testators 
placing  themselves  in  loco  parentis:  Sullivan  v.  Winthrop,  ubi  supra  ;  Hite 
V.  Hite,  2  Rand  409 ;  Miles  v.  Wister,  5  Binn.  479 ;  Bitzer  v.  Hahn,  14 
S.  &  R.  232.  So,  though  the  legaisy  is  payable  at  twenty-one,  and  with- 
out mention  of  interest,  Ibid. ;  or  is  given  for  life,  for  separate  use :  Bird's 
Est.,  2  Pars.  Eq.  168  ;  Bowman's  Appeal,  34  Penn.  St.  19.  This  exception 
does  not  extend  to  the  case  of  a  grandchild  :  Lupton  v.  Lupton,  2  John.  Ch. 
614,  See  Smith  v.  Moore,  25  Verm.  127  ;  Walker  v.  Walker,  27  Ala.  396 ; 
but  see  Bitzer  v.  Hahn,  14  S.  &  R.  232,  semb.  contr.,  also  Bowman's  Ap- 
peal, 34  Penn.  St.  19 ;  nor  to  grand-nephews :  Miles  v.  Wister,  5  Binn. 
479;  nor  to  the  widow:  Martin  v.  Martin,  6  Watts  67;  Gill's  Appeal,  2 
Penn.*  St.  231. 

As  a  legacy  to  a  child  carries  interest,  in  the  accepted  cases,  on  the  ground 
of  the  duty  of  maintenance,  where  the  parent  has  fulfilled  that  duty  by 
providing  maintenance  out  of  another  fund,  the  legacy  does  not  necessarily 
carry  interest :  Rouse's  Est.,  9  Hare  649.  When  it  is  apparent  that  a  legacy 
is  intended  for  the  immediate  support  of  the  legatee,  it  will  bear  interest 
from  the  death  of  the  testator.  If,  however,  it  is  charged  on  the  income 
of  the  estate,  it  cannot  be  considered  due  till  one  year  has  elapsed :  Morgan 
V.  Pope,  7  Cold.  (Tenn.)  541. 


240       .  ADAMS's    DOCTRINE     OF    EQUITY. 

It  will  be  convenient  to  consider  each  case  separately, 
taking  first  that  of  a  prior  legacy,  and  afterwards  that  of 
a  prior  promise. 

In  the  case  of  ^  prior  legacy,  followed  by  a  gift  or 
legacy  of  later  date,  the  question  which  arises  is,  whether 
the  later  gift  or  legacy,  was  intended  to  be  identical  with 
the  first,  so  as  to  operate  either  by  way  of  anticipated 
payment  or  as  a  reiteration  of  the  original  gift.  If  it 
was  so  intended,  and  the  intention  is  proved  by  admissible 
evidence,  the  first  legacy  is  a  obviously  at  an  end,  as  if 
a  man  were  to  bequeath  a  particular  horse,  and  were 
afterwards  to  give  the  horse  in  his  lifetime,  or  again  be- 
queath it  to  the  same  person.  The  construction  put  by 
law  on  the  later  gift  or  legacy  is  prima  facie  against  its 
being  meant  as  identical,  and  in  favor  of  its  being  held  an 
independent  benefit.  And  if  it  be  conferred  by  a  written 
instrument,  extrinsic  evidence  of  the  intention  is  not  ad- 
missible. (:r)  The  construction,  however,  may  be  altered 
by  a  presumption  of  law,  to  be  raised  by  a  comparison  of 
the  two  gifts,  and  of  the  motives  respectively  assigned 
for  each,  or  by  the  relative  position  in  which  the  parties 
r*in41  ^^^'^^^  The  first  Aground  of  presumption,  arising 
from  the  similarity  of  the  gifts  and  motives,  is  not 
material  to  our  present  purpose.  It  is  sufficient  to  ob- 
serve, that  mere  equality  of  amount  is  not  such  an  identi- 
fication of  the  gifts  as  will  prevent  their  cumulative  eff*ect. 
But  if,  in  addition  to  this,  the  same  motive  is  expressed 
for  both,  the  double  coincidence  gives  rise  to  a  presump- 

[x)  Ex  parte  Dubost,  18  Ves.  140 ;  Kirk  v.  Eddowes,  3  Hare  509 ;  2 
Will,  on  Exors.,  2d  ed.  924 ;  Hurst  v.  Beach,  5  Madd.  351 ;  Suisse  v.  Lord 
Lowther,  2  Hare  424 ;  Lee  v.  Paine,  4  Id.  201  ;  Hall  v.  Hill,  1  Conn.  & 
L.  120. 


OF    IMPERFECT    CONSIDERATION.  241 

tion  that  repetition  was  intended,  and  not  accumulation.  (^)^ 
The  second  ground  of  presumption  arises  out  of  the  rela- 
tive position  of  the  parties,  and  is  that  with  which  we  are 
now  more  immediately  concerned.  If  the  donor  be  a 
parent,  or  in  loco  parentis,  the  presumption  is  that  the  first 
legacy  was  intended  as  a  provision,  proportioned  to  the 
then  existing  claims  of  the  legatee,  and  that  the  later  gift 
or  legacy  had  the  same  object,  and  was  intended  as  an 
immediate  payment  or  a  modified  repetition,  either  in  full 
or  pro  tanto,  by  reason  of  altered  circumstances,  of  the 
first.  And  the  circumstance,  that  the  second  benefit 
differs  in  amount  or  disposition  from  the  first,  is  not  incon- 
sistent with  such  presumption.  The  doctrine  on  this  point 
is  expressed  by  the  maxim,  that  "the  presumption  is 
against  a  double   portion."  (0)^     The  presumption   thus 

( y)  Hurst  v.  Beach,  5  Madd.  351 ;  Suisse  v.  Lord  Lowther,  2  Hare  424. 

(2)  Wharton  v.  Earl  of  Durham,  3  M.  &  K.  472  ;  3  CI.  &  F.  146 ;  Pym 
V.  Lockyer,  5  M.  &  C.  29 ;  Suisse  v.  Lord  Lowther,  2  Hare  424 ;  Lady 
Thynne  v.  Earl  Glengall,  2  House  Lds.  Cas.  153.  In  Scotland  the  law  is 
otherwise :  Campbell  v.  Campbell,  L.  K.  1  Eq.  383. 

^  See  the  cases  of  Dewitt  v.  Yates,  10  Johns.  156  ;  Jones  r.  Creveling's 
Ex'rs.,  4  Harrison  127  ;  Id.,  1  Zabriskie  573, 

The  rule,  as  established  by  these  cases,  is,  that  where  the  two  bequests 
occur  in  the  same  instrument,  the  presumption  is  most  strongly  in  favor 
of  repetition  ;  but  if  in  different  instruments,  then  the  presumption  is,  in 
general,  in  favor  of  cumulation.  See  also,  Wilson  r.  O'Leary,  L.  R.  12 
Eq.  525.  In  the  former  case,  the  fact  that  the  second  legacy  is  charged 
upon  land,  will  not  rebut  the  presumption  of  repetition :  Dewitt  v.  Yates, 
ut  sup. ;  Hooley  v.  Hatton,  1  Lead.  Cas.  Eq.  285. 

^  Ademption  only  takes  place  where  a  parent  bequeaths  a  legacy  to  a 
child,  and  afterwards  gives  a  portion  to  the  same  child,  which  is  ejusdem 
generis.  A  house  and  lot  is  not  ejusdem  generis  with  a  pecuniary  legacy, 
and  cannot  adeem  it :  Swoope's  Appeal,  27  Penn.  St.  58.  See  also,  Rogers 
V.  French,  19  Geo.  316. 

In  New  York,  it  has  been  held  that  the  intention  of  a  testator  that  a 
subsequent  gift  or  advancement  shall  operate  as  a  satisfaction  of  a  legacy 
cannot  be  presumed,  for  in  such  a  case,  there  is  an  implied  revocation  of 
16 


242  ADAMS's    DOCTRINE    OF    EQUITY. 

raised,  whether  it  be  based  on  a  comparison  of  the  two 
gifts,  or  on  the  relative  position  of  the  two  parties,  is 
against  the  prima  facie  construction  of  the  second  gift. 
And  therefore  it  may  be  rebutted  by  extrinsic  evidence 
of  intention,  and  sustained  by  counter  evidence  of  the 
same  kind,  notwithstanding  that  the  gift  is  by  a  written 
instrument,  {a) 

The  second  case  is  that  of  a  promise  inter  vivos,  followed 
by  a  gift  or  legacy  of  later  date.^ 

If  the  benefit  promised  and  the  benefit  conferred  are 
precisely  identical,  no  question  arises ;  for  the  promisor 
has  done  that  which  he  undertook  to  do ;  and  his  promise 
p^-jQr-i  is  in  *fact  performed.  (^)  But  if  they  are  not 
precisely  identical,  then  a  question  arises  whether 
the  gift  or  legacy  was  meant  in  satisfaction,  either  wholly 
or  in  part,  of  the  original  promise.  If  an  intention  to 
that  effect  be  shown,  the  promisee  must  elect  between  the 
two  benefits.  The  principle  of  decision  in  this  case  is  the 
same  as  in  that  of  double  legacies.  The  primd  facie  con- 
struction of  the  second  gift  is  in  favor  of  its  being  con- 
sidered independent  of  the  first.  And  that  construction 
may  be  rebutted,  either  by  a  comparison  of  the  promise 
and  the  gift,  and  of  the  motives  for  which  they  are  re- 
spectively expressed  to  be  made ;  or  by  the  presumption 
that  both  a,re  by  way  of  portion,  and  consequently  that 

.  (a)  Hurst  v.  Beach,  5  Madd.  351 ;  Hall  v.  Hill,  1  Conn.  &  L.  120.;  Kirk 
V.  Eddowes,  3  Hare  509. 

(6)  Blandy  v.  Widmore,  1  P.  W.  324;  Goldsmid  v.  Goldsmid,  1  Sw.  211. 

the  will,  which  is  forbidden  by  the  Rev.  Sts. :  Langdon  v.  Astor's  Execu- 
tors, 3  Duer  477. 

^  The  subject  of  the  satisfaction  of  debts,  portions,  and  legacies,  is  very 
fully  discussed  in  the  notes  to  Ex  Parte  Pye,  2  Lead.  Cas.  Eq.  303,  where 
all  the  American  cases  are  cited  and  commented  upon.  The  rules  on  the 
subject  are  in  general  the  same  in  this  country  as  in  England. 


OF     IMPERFECT    CONSIDERATION.  243 

the  second  is  in  lieu  of  the  first,  (c)^  The  effect,  however, 
of  differences  between  the  promise  and  the  benefit,  is 
much  greater  than  in  the  case  of  successive  legacies ;  for 
the  donor  must  know  that  he  cannot  alter  his  promise, 
and  therefore  any  variation  from  its  terms  tends  to  the 
conclusion  that  it  was  not  in  his  mind.(^) 

The  presumption  which  arises  from  the  relationship  of 
parent  and  child,  exists  also  in  a  less  degree  with  respect 
to  creditors,  whether  mere  strangers  or  children,  to  whom, 
by  transactions  independent  of  the  relationship,  the  parent 
has  become  indebted.  In  such  cases,  the  presumption  is, 
that  a  payment  by  the  debtor,  equal  to  or  exceeding  the 
debt,  is  meant  in  discharge,  and  the  same  doctrine  applies 
to  a  legacy,  provided  it  be  substantially  equivalent  to 
payment.  (^)^  But  the  presumption  is  much  weaker  than 
with  respect  to  portions,  and  may  be  excluded  by  a  less 
degree  of  difference ;  as,  for  example,  if  the  legacy  be 

(c)  Ansley  r.  Bainbridge,  1  R.  &  M,  657 ;  Jones  v.  Morgan,  2  Y.  &  C. 
403  ;  Weall  v.  Rice,  2  R.  &  M.  251 ;  Plunkett  v.  Lewis,  3  Hare  316  ;  Hall 
V.  Hill,  1  Conn.  &  L.  120.   , 

{d)  Wharton  v.  Earl  of  Durham,  3  M.  &  K.  472 ;  3  CI.  &  F.  146,  155 ; 
[Lady  Thynne  v.  Earl  of  Glengall,  2  H.  Lds.  Cas.  153.] 

(e)  Plunkett ».  Lewis,  3  Hare  316  ;  Jeffs  v.  Wood,  2  P.  W.  129 ;  Chancey's 
Case,  1  P.  W.  408 ;  Wallace  v.  Pomfret,  11  Ves.  542. 

^  Ilopwood  V.  Hopwood,  7  H.  L.  Cas.  728.  A  residuary  legacy  may  be 
adeemed,  and  the  ademption  need  not  be  entire,  but  may  he  pro  tanto  : 
Montefiore  v.  Guedalla,  1  De  G.,  F.  <Jb  J.  93  ;  Coventry  v.  Chichester,  2  Hem. 
&  M.  149.  See  further,  on  this  subject,  McClure  v.  Evans,  29  Bea.  422 ; 
Ravenscroft  r.  Jones,  32  Id.  669  ;  Hine  v.  Hine,  39  Barb.  507  ;  Miner  v. 
Atherton's  Executor,  35  Penn.  St.  528.  Substituted  and  added  legacies 
are  to  be  raised  out  of  the  same  fund  and  are  subject  to  the  same  con- 
ditions :  Leacroft  t?.  Maynard,  1  Ves.  Jr.  279 ;  Crowder  p.  Clowes,  2  Id. 
449  ;  Johnstone  v.  The  Earl  of  Harrowby,  1  De  G.,  F.  &  J.  183  ;  Note  to 
Hooley  v.  Hatton,  1  Lead.  Cas.  Eq.  301. 

^  This  was  termed  a  "  false  principle"  by  the  Vice-Chancellor  of  England 
in  Hassell  v.  Hawkins,  4  Drew.  468. 


244  ADAMS's    DOCTRINE    OF    EQUITY. 

less  than  the  debt,  or  if  it  be  payable  at  a  different 
time.(/) 

Whenever  the  presumption  arises,  it  may,  as  we  have 
r*l  Ofil  ^^^^'  *^®  rebutted  or  confirmed  by  evidence,  not- 
withstanding that  the  gift  is  by  a  written  instru- 
ment.^ But  it  must  be  evidence  in  rebuttal  or  confirma- 
tion of  the  presumption,  and  not  evidence  to  construe  the 
instrument  itself.^  The  presumption,  therefore,  must  first 
arise,  and  if  the  instrument  is  so  worded  that  its  prima 
facie  construction  is  not  altered  by  the  relationship  alone, 
extrinsic  evidence  of  intention  is  not  admissible.  (^) 

The  last  equity  which  will  be  considered  in  the  present 
chapter,  is  the  converse  to  that  of  specific  performance, 
and  consists  in  giving  effect  to  discharges  by  matter  in 
pais  of  contracts  under  seal,  and  in  confining  the  claim  on 
a  contract  with  a  penalty  to  the  specific  performance  of 
its  terms. 

We  will  first  consider  the  doctrine  as  to  Discharges  by 
Matter  in  Pais  of  Contracts  under  Seal.^ 

It  is  a  rule  of  law,  that  an  agreement  under  seal,  tech- 
nically termed  an  agreement  by  specialty,  can  only  be 
avoided  by  a  like  specialty ;  and  it  is  therefore  unaffected 

(/)  2  Will,  on  Executors  929  ;  2  Story  on  Equity,  s.  1122. 

[g]  Wallace  v.  Pomfret,  11  Ves.  542 ;  Hall  v.  Hill,  1  Conn.  &  L.  120. 

^  Miner  r.  Atherton's  Executor,  35  Penn.  St.  528. 

*  Eaton  V.  Benton,  2  Hill  576  ;  Jones  v.  Mason,  5  Rand.  577 ;  Brady  v. 
Cabitt,  1  Dougl.  30  ;  Zeigler  v.  Eckert,  6  Penn.  St.  13  ;  Zeiter  v.  Zeiter,  4 
Watts  212. 

'  See  post,  notes  to  pp.  Ill,  112. 

It  is  settled,  in  Pennsylvania,  that  verbal  stipulations  by  one  party,  on 
the  faith  of  which  a  vrritten  agreement  is  executed  by  the  other,  will  con- 
trol the  writing,  even  in  the  absence  of  evidence  of  a  fraudulent  design  : 
Hultz  V.  Wright,  16  S.  &  R.  345 ;  Christ  v.  Diffenbach,  1  Id.  464 ;  Miller 
V.  Henderson,  10  Id.  292;  Clark  v.  Partridge,  2  Penn.  St.  13  ;  4  Id.  166. 
See  Keisselbrack  v.  Livingston,  4  John.  Ch.  114. 


DISCHARGES,     ETC.,    OF    CONTRACTS,    ETC.       245 

by  an  accord  by  parol,  or  other  matter  in  pais,  which 
would  operate  as  a  discharge  of  a  simple  contract.  (^)  In 
equity,  however,  the  rule  is  otherwise.  For  the  form  of 
agreement  is  immaterial ;  and  if  the  act  done  is  in  sub- 
stance a  discharge,  it  will  warrant  a  decree  for  the  execu- 
tion of  a  release,  or  for  delivery  up  and  cancellation  of 
the  specialty.^ 

The  most  ordinary  application  of  this  equity  is  in  favor 
of  sureties,  where  a  guarantee  has  been  given  under  seal, 
and  the  creditor,  without  the  surety's  consent,  has  dis- 
charged or  modified  the  principal's  liability.  In  this  case 
the  doctrine  of  the  law  is,  that  by  such  discharge  or  modi- 
fication of  the  principal's  liability,  the  surety  is  absolutely 
discharged;  for  he  has  contracted  to  guarantee  a  specific 
agreement ;  and  if  a  new  agreement  be  substituted  with- 
out his  assent,  his  contract  is  at  an  end.(/)^ 

*The  same  effect  is  produced  if  the  creditor    r-^-iriY-i 
enters  into  a  binding  contract  to  give  time  for  pay- 
ment to  the  principal.     For  it  would  be  a  fraud  on  the 
contract,  if  he  were  afterwards  to  receive  his  debt  from 

(A)  1  Selw.  N.  P.  518,  549. 

(i)  Samnell  v.  Howarth,  3  Meriv.  272  ;  Mayhew  v.  Crickett,  2  Sw.  186  ; 
Smith's  Merc.  Law  423 ;  3  Jarman's  Bythewood,  3d  ed.,  p.  298-305. 

^  Hurlbut  V.  Phelps,  30  Conn.  42.  In  general,  however,  the  court  will 
not  decree  that  to  be  a  release  in  equity  which  is  not  so  at  law,  unless 
there  be  a  valuable  consideration  :  Cross  v.  Sprigg,  6  Hare  552  ;  Tufnell 
r.  Constable,  8  Sim.  69;  Peaces.  Hains,  17  Jurist  1091;  11  Hare  151; 
Campbell's  Estate,  7  Penn.  St.  100;  Kidder  v.  Kidder,  33  Id.  268.  See, 
also,  Yeomans  v.  Williams,  L.  R.  1  Eq.  184 ;  Taylor  v.  Manners,  L.  R.  1  Ch. 
Ap.  48  ;  and  the  party  claiming  the  benefit  of  this  equitable  doctrine,  must, 
as  in  all  other  instances,  do  equity  :  Ileadlcy  v.  Goundry,  41  Barb.  279. 

''  On  the  subject  of  the  discharge  of  a  surety  by  the  conduct  of  the  cred- 
itor, see  post,  268,  note ;  also.  Pledge  v.  Buss,  Johns.  663 ;  Brubaker  v. 
Okeson,  36  Penn.  St.  519  ;  Henderson  v.  Ardery,  Id.  449  ;  and  the  notes  to 
Rees  V.  Berrington,  2  Lead.  Cas.  Eq.  814,  where  the  American  cases  are 
cited. 


246  ADAMS's     DOCTRINE     OF     EQUITY. 

the  surety,  and  thus  confer  on  him  an  immediate  right  of 
action  against  the  principal.  The  position  of  the  surety 
is  therefore  varied,  and  he  is  in  consequence  discharged 
altogether  from  his  guarantee.  If,  however,  the  creditor, 
in  agreeing  to  give  time,  expressly  reserve  his  remedies 
against  the  surety,  there  is  no  discharge ;  for  although  he 
undertakes  not  to  sue  the  principal  directly,  he  does  not 
preclude  himself  from  enabling  the  surety  to  do  so.  Nor 
will  the  surety  be  discharged  by  mere  forbearance  to  sue, 
unless  there  be  a  stipulation  in  the  guarantee,  binding  the 
party  guarantied  to  use  due  diligence  against  the  princi- 
pal, (k) 

The  doctrine  which  has  just  been  laid  down  is  not 
peculiar  to  the  Court  of  Chancery ;  but  its  operation  at 
law  is  confined  to  guarantees  by  simple  contract.  If  the 
guarantee  be  by  specialty,  the  rule  that  its  discharge  must 
be  by  a  like  specialty,  prevents  the  creditor's  conduct 
being  pleaded  at  laAv.  And  a  consequent  equity  arises  to 
restrain  him  from  suing  at  law,  and  to  compel  him,  if 
requisite,  to  give  up  or  cancel  the  guarantee.  (/) 

The  equity  for  relief  against  enforcement  of  Penalties, 
originates  in  the  rule  which  formerly  prevailed  at  law,  that 
on  breach  of  a  contract  secured  by  penalty,  the  full  penalty 
might  be  enforced  without  regard  to  the  damage  sustained.^ 

{k)  Ex  parte  Glendinning,  Buck  517 ;  Boultbee  v.  Stubbs,  18  Ves.  20 ; 
Eyre  v.  Everett,  2  Russ.  381. 

[l)  Archer  v.  Hale,  1  Moore  &  P.  285 ;  Aldridge  v.  Harper,  3  Moore  & 
Sc.  518  ;■  Blake  v.  White,  1  Y.  &  C.  420 ;  Brooks  v.  Stuart,  1  Bea.  512. 

*  A  Court  of  equity  will  always  relieve  against  a  penalty,  where  com- 
pensation can  be  made  :  Hackett  v.  Alcock,  1  Call.  533  ;  Mayo  v.  Judah,  5 
Munf.  495 ;  and  also  against  back  interest,  secured  by  way  of  penalty : 
Mosby  V.  Taylor,  Gilm.  172 ;  and  will  not  aid  the  recovery  of  a  penalty  of 
forfeiture,  or  anything  in  the  nature  of  one :  Livingston  v.  Tompkins,  4 
John.  Ch.  431 ;  McKim  v.  White  Hall  Co.,  2  Md.  Ch.  510  ;  Shoup  v.  Cook, 


RELIEF    AGAINST    PENALTIES.  247 

The  Court  of  Chancery,  in  treating  contracts  as  matters 
for  specific  performance,  was  naturally  led  to  the  conclu- 
sion that  the  annexation  of  a  penalty  did  not  alter  their 
character ;  and  in  accordance  with  this  view,  would  not  on 
the  one  hand  permit  the  contracting  party  to  evade  per- 
formance by  paying  the  penalty  ;  and  on  the  other  hand, 
would  restrain  *proceedings  to  enforce  the  penalty  r-^-,  r^Q-, 
on  a  subsequent  performance  of  the  contract 
itself;  viz.,  in  the  case  of  a  debt,  on  payment  of  the  prin- 
cipal, interest,  and  costs;  or  in  that  of  any  other  contract, 
on  reimbursement  of  the  actual  damage  sustained. 

An  authority  of  a  similar  kind  has  been  now  conferred 
on.  courts  of  law  by  two  statutes,  the  first  of  which 
applies  to  penalties  for  non-performance  of  covenants,  and 
the  second  to  those  of  non-payment  of  money,  (tw)^  The 
effect  of  these  statutes  has  been  to  diminish  the  frequency 

(m)  8  &  9  Wm.  3,  c.  11,  s.  8  ;  4  &  5  Ann.  c.  16,  ss.  12,  13 ;  1  Selw. 
N.  P.  542,  569,  588. 

1  Carter  135.  But  where  the  sums  covenanted  to  be  paid  are  in  the 
nature  of  stipulated  damages,  a  Court  of  Chancery  will  not  relieve :  Skinner 
V.  Dayton,  2  John.  Ch.  526  ;  s.  c.  Skinner  r.  White,  17  John.  357.  See  Mso, 
White  V.  Dingley,  4  Mass.  433 ;  Pierce  v.  Fuller,  8  Id.  223  ;  Tingley  v. 
Cutler,  7  Conn.  291 ;  Slosson  v.  Beadle,  7  Johns.  72 ;  Myers  v.  Hay,  3 
Missouri  98 ;  Gammon  v.  Howe,  14  Maine  250.  Where  a  stipulation  is 
designated  in  the  contract  as  a  penalty,  how  far  a  Court  will  consider  a 
sum  stipulated  as  liquidated  damages,  see  Taylor  v.  Sandiford,  7  Wheat. 
19 ;  Curry  v.  Larer,  7  Penn.  St.  470 ;  Streeper  v.  Williams,  48  Id.  450 ; 
Shreve  v.  Brereton,  51  Id.  175.  See  on  this  subject  the  notes  to  Peachy 
r.  Somerset,  2  Lead.  Cas.  Eq.  895 ;  where  the  American  and  English  cases 
are  collected  and  very  fully  considered. 

A  proviso  in  a  mortgage,  that  the  whole  sum  shall  become  due  upon 
the  failure  to  pay  any  one  of  the  instalments  on  the  day,  is  in  the  nature 
of  a  penalty,  against  which  equity  will  relieve  upon  adequate  compensa- 
tion, viz.,  payment  of  instalment  due,  interest  and  costs :  Tiernan  v. 
Hinman,  16  111.  400 ;  Martin  v.  Melville,  3  Stockt.  222 ;  Thompson  v.  Hudson, 
L.  R.  2  Eq.  612.     See,  however,  Sterne  r.  Beck.  1  De  G.,  J.  &  Sm.  598. 

^  These  or  similar  statues  are  in  force  generally  in  the  United  States. 


248  ADAMS's    DOCTEINE    OF    EQUITY. 

of  equitable  interference.  But  they  do  not  affect  the  au- 
thority to  interfere.  The  jurisdiction  is  not  limited  to  the 
case  of  bonds  or  of  instruments  which  in  terms  impose  a 
penalty ;  but  extends  to  all  agreements  where  a  stipula- 
tion is  made  in  the-  event  of  non-performance,  which  on 
the  whole  matter  appears  intended  as  such.  If  it  be  not 
in  truth  meant  as  a  penalty,  but  be  merely  an  agreement 
between  the  parties  that  a  fixed  sum  shall  be  paid,  as 
ascertained  or  liquidated  damages,  for  doing  or  omitting 
a  particular  act,  there  is  no  equity  to  substitute  a  new 
agreement.  The  mere  use,  however,  of  the  words  "  liqui- 
dated damages,"  will  not  of  itself  decide  the  question ; 
but  it  depends  on  the  substantial  meaning  of  the  contract.^ 
If,  for  example,  the  payment  of  a  smaller  sum  is  secured 
by  a  larger,  or  if  there  be  a  series  of  covenants  of  varying 
importance,  and  the  same  specific  sum  is  made  payable  in 

*  It  is  stated  by  Judge  Hare,  in  his  lucid  and  able  notes  to  Peachy  v. 
Somerset,  2  Lead.  Cas.  Eq.,  Pt.  ii.,  472,  upon  a  full  examination  of  the  cases, 
that  the  result  "  seems  to  be,  that  equity  will  not  permit  a  recorery  for 
the  breach  of  a  contract,  to  an  extent  manifestly  greater  than  the  injury 
suffered,  but  that  the  parties  may  fix  upon  that  amount  of  compensation, 
which  does  not  come  in  conflict  with  this  limitation.  Hence,  when  the  in- 
jury is  susceptible  of  definite  admeasurement,  as  in  all  cases  where  the 
breach  consists  in  the  non-payment  of  money,  the  parties  will  not  be 
allowed  to  make  a  stipulation  for  a  greater  amount,  whether  in  the  form 
of  a  penalty  or  of  liquidated  damages.  But  when,  on  the  other  hand,  the 
injury  in  question  is  uncertain  in  itself,  and  insusceptible  of  being  reduced 
to  certainty  by  a  legal  computation,  it  may  be  settled  beforehand,  by  special 

agreement But  even  when  the  subject-matter  is  one  which 

admits  of.  compensation  fixed  by  agreement,  and  not  by  the  law,  still  it 
must  be  a  question,  whether  the  parties  have  so  meant  to  fix  it,  and 
whether  a  stipulation  for  the  payment  of  a  sum  certain,  in  case  of  default, 
is  intended  as  a  penalty,  or  as  a  liquidation  of  the  damages.  This  is  ob- 
/  viously  a  question  of  intention,  determinable,  in  the  first  place,  by  what 
appears  on  the  face  of  the  contract  itself;  and  next,  by  a  resort  to  extrin- 
sic circumstances."  See  also  a  full  discussion  of  the  law  on  this  subject 
in  Cotheal  v.  Talmage,  5  Selden  551. 


RELIEF    AGAINST    PENALTIES.  249 

respect  of  each,  the  stipulated  payment  will  be  held  a  penal 
one,  notwithstanding  that  it  may  be  otherwise  named  in 
the  contract,  (w)  The  distinction  thus  drawn  between  a 
penalty  for  securing  the  performance  of  the  contract,  and 
a  stipulation  which  makes  part  of  the  contract  itself,  may 
be  illustrated  by  the  rule,  that  if  a  certain  rate  of  interest 
be  reserved  on  a  mortgage,  with  an  agreement  that  if  it 
be  not  paid  punctually,  the  rate  shall  be  increased,  the 
larger  *interest  is  in  the  nature  of  a  penalty,  and  r-^-.  J^Q^ 
may  be  relieved  against  in  equity.  But  on  the 
other  hand,  if  the  larger  rate  be  originally  reserved,  with 
an  agreement  for  reduction  on  punctual  payment,  the  con- 
dition for  such  punctual  payment  is  part  of  the  contract, 
and  relief  cannot  be  given  if  it  is  not  fulfilled,  (o)^ 

The  same  relief  which  is  granted  in  the  case  of  penal- 
ties has  also  been  extended  to  clauses  of  re-entry  for  non- 
performance of  the  covenants  in  a  lease.^  In  respect  to 
covenants  for  payment  of  rent,  the  jurisdiction  for  this 
purpose  has  been  long  established  on  the  principle  that 
payment  of  the  rent  with  interest  is  a  complete  compen- 
sation for  the  damage  sustained.  Its  soundness,  even  in 
this  case,  has  been  questioned  by  Lord  Eldon,  for  it  is  by 
no  means  true  that  subsequent  interest  is  an  equivalent 
for  punctuality ;  but  its  exercise  is  established  by  pre- 

(n)  Rolfe  V.  Peterson,  2  B.  P.  C.  by  Toml.  436  ;  Kemble  v.  Farren,  6 
Bing.  141 ;  Boys  v.  Ancell,  5  Bing.  N.  C.  390 ;  3  Jarm.  Byth.  325-336. 
(o)  Nicholls  V.  Maynard,  3  Atk.  519. 

^  A  stipulation  in  a  mortgage,  that  if  it  becomes  necessary  to  forclose,  a 
reasonable  amount  shall  be  added  as  attorney's  fees,  is  not  in  the  nature 
of  a  penalty  and  is  valid  :  Nelson  v.  Everett,  29  Iowa  184  ;  Williams  v. 
Meeker,  Id.  292. 

'  Or  breach  of  conditions  subsequent :  Smith  v.  Jewett,  40  N.  H.  530. 
See,  also,  Warner  v.  Bennett,  31  Conn.  468  ;  Robinson  v.  Loomis,  51  Penn. 
St.  78  ;   Mahoning  Co.  Bank,  32  Id.  158. 


250  ADAMS's     DOCTRINE     OF     EQUITY. 

cedent,  and  has  been  for  the  last  century  recognised  by 
an  express  statute,  defining  the  circumstances  to  which 
it  shall  apply,  and  conferring  a  similar  jurisdiction  on 
Courts  of  law. (jo)  To  this  extent  therefore  the  jurisdic- 
tion is  settled  ;  but  it  is  not  carried  beyond  this  limit. 
Relief  will  be  granted  where  a  forfeiture  is  incurred  by 
non-payment  of  money,  and  perhaps  in  other  cases  also, 
if  a  special  equity  be  raised  on  the  ground  of  unavoidable 
ignorance  or  accident;  but  it  will  not  be  granted  without 
such  special  equity,  in  respect  of  covenants  for  repairing, 
insuring,  or  doing  any  specific  act,  where  the  compensa- 
tion must  be  estimated  in  damages.  (§') 

{p)  4  Geo.  2,  c.  28  ;  Adams  on  Ejectment  122. 

[q]  Hill  V.  Barclay,  18  Ves.  56 ;  Reynolds  v.  Pitt,  19  Id.  134 ;  Ex  parte 
Vaughan,  T.  &  R.  434 ;  Green  v.  Bridges,  4  Sim.  96  ;  White  v.  Warner,  2 
Meriv.  459  ;  Elliott  v.  Turner,  13  Sim.  477. 


PERFECT  AND  IMPERFECT  MORTGAGES.    251 


*CH AFTER    III.  PIIO] 

OF  MORTGAGES,  BOTH  PERFECT  AND  IMPERFECT. 

The  equity  for  relief  against  penalties  applies  most  ex- 
tensively to  the  case  of  Forfeited  Mortgages,  where  a 
loan  has  been  secured  by  the  transfer  of  property,  with 
a  condition  to  redeem  on  a  specified  day,  and  the  right  of 
redemption  has  been  forfeited  at  law  by  non-payment  at 
the  appointed  time.  There  are  other  methods  of  charging 
loans  on  property,  which  will  be  presently  noticed  as  im- 
perfect mortgages.  But  a  regular  mortgage  is  in  the  form 
which  has  been  just  mentioned,  and  may  be  defined  as  a 
"security  for  a  debt,  created  by  conveyance  of  the  legal 
ownership  in  property,  either  to  the  entire  extent  of  the 
mortgagor's  estate,  or  for  a  partial  estate  carved  out  of  it, 
with  a  proviso  that,  on  payment  at  a  specified  time  the 
conveyance  shall  be  void  or  the  mortgagee  shall  reconvey."* 

'  It  18  perfectly  well  settled  that  a  mortgage  is  a  mere  secarity  for  a 
debt :  Wilson  v.  Troup,  2  Cow.  195  ;  Simpson  v.  Ammons,  1  Binney  177  ; 
Ragland  v.  Justices,  10  Geo.  65  ;  4  Kent's  Com.  160 ;  Williams  on  Real 
Prop.  391 ;  note  to  Thornborough  v.  Baker,  2  Lead.  Cas.  Eq.  857.  And 
from  this  doctrine  several  consequences  arise. 

First.  The  interest  of  the  mortgagee  in  fee,  or  for  a  smaller  estate,  is 
personalty,  and  his  executor,  and  not  the  heir,  is  entitled  to  the  money 
secured  by  the  mortgage :  Thornborough  v.  Baker,  supra. 

Second.  It  is  not  necessary  that  there  should  be  any  independent  evi- 
dence of  the  debt,  or  any  personal  or  collateral  security  for  the  same.  The 
mortgage  alone  is  suflBcient :  Mitchell  v.  Burnham,  44  Maine  299.  See 
also  Chappell  v.  Allen,  38  Mo.  213  ;  Bank  v.  Anderson,  14  Iowa  544. 

Third.  The  payment  or  discharge  of  the  mortgage  debt  revests  the  estate 


2?2  ADAMS'S    DOCTRINE    OF    EQUITY. 

Until  the  day  of  redemption  is  passed,  the  debtor  is 
not  invested  with  any  special  equity.  («)     He  may  pay 

to)  Brown  v.  Cole,  14  Sim.  427. 

at  law  in  the  mortgagor  without  the  necessity  of  a  reconveyance :  4  Kent's 
Com.  194,  and  notes ;  Williams  on  Real  Prop.  391 ;  McNair  ».  Picotte,  33 
Mo.  57;  Large  ».  Van  Doren,  1  McCart.  211;  Gray  v.  Jenks,  3  Mason 
526  ;  Martin  t>.  Mowlin,  2  Burrow  978.  Though  see  Cross  v.  Robinson,  21 
Conn.  379.  It  must  be  done  before  condition  broken :  Stewart  v.  Crosby, 
50  Maine  130 ;  Grover  v.  Flye,  5  Allen  543. 

Fourth.  The  transfer  or  extinguishment  of  the  debt  will  operate  as  a 
transfer  or  extinguishment  of  the  mortgage :  Hawkins  v.  King,  2  A.  K. 
Marsh.  109  ;  Barnes  v.  Lee,  1  Bibb  526  ;  Ackla  v.  Ackla,  6  Penn.  St.  228  ; 
Wallis  V.  Long,  16  Ala.  738 ;  Smith  v.  Smith,  15  N.  H.  55  ;  Moore  v.  Bea- 
8om,  44  Id.  215;  Armitage  v.  Wickliflfe,  12  B.  Mon.  488;  Marriott  v. 
Handy,  8  Gill  31 ;  Hadloek  ».  Bulfinch,  31  Maine  246,  308 ;  Wilson  v. 
Drumrite,  21  Mo.  325  ;  Blodgett  v.  Wadhams,  Hill  &  Denio  65 ;  Ledyard 
V.  Chapio,  6  Ind.  320;  Keyes  v.  Wood,  21  Vt.^332 ;  Mapps  v.  Sharpe,  32 
Id.  13 ;  Dearborn  v.  Taylor,  18  N.  H.  153  ;  Potter  v.  Stevens,  40  Mo.  229; 
Moore  ».  Cornell,  68  Penn.  St.  320 ;  Hyman  v.  Devereux,  63  N.  C.  624 ; 
though  see  Dwinel  v.  Perley,  32  Maine  197 ;  Chappell  v.  Allen,  38  Mo. 
213  ;  Banko.  Anderson,  14  Iowa  544;  Olds  v.  Cummings,  31  111.  188.  An 
assignment  of  the  mortgage  without  the  debt  is  a  nullity :  Polhemus  v. 
Trainer,  30  Cal.  685 ;  Merritt  v.  Bartholick,  36  N.  Y.  44. 

Fifth.  But  the  fact  that  a  simple  contract  debt  is  barred  by  the  Statute 
of  Limitations,  will  not  prevent  recovery  upon  a  mortgage  given  to  secure 
it :  Elkins  v.  Edwards,  8  Geo.  326  ;  Thayer  ».  Mann,  19  Pick.  535  ;  Bush  v. 
Cooper,  26  Miss.  599 ;  Whipple  v.  Barnes,  21  Wis.  327.  Though  in  Cali- 
fornia, under  the  statute  in  that  state,  the  rule  is  otherwise :  Lord  v.  Mor- 
ris, 18  Cal.  482. 

Sixth.  It  has  been  held  that  a  tender  of  the  debt  on  or  after  the  day  upon 
which  it  falls  due,  discharges  the  lien  of  the  mortgage  :  Kortrightr.  Cady, 
21  N.  Y.  343  ;  Caruthers  v.  Humphreys,  12  Mich.  270 ;  Van  Husen  v. 
Kanouse,  13  Mich.  303.  But  it  may  well  be  doubted  whether  these  decisions 
are  not  opposed  to  the  policy  of  the  recording  acts,  and  whether  the  courts 
in  other. states  will  not  hold  a  different  doctrine. 

Seventh.  A  mortgage  being  a  mere  security  for  a  debt,  it  may  be  given 
to  secure  future  advances,  as  well  as  an  existing  indebtedness  :  Shirras  v. 
Craig,  7  Cranch  34 ;  Johnson  v.  Richardson,  38  N.  H.  353 ;  Seymour  v. 
Darrow,  31  A''t.  122.  And  see,  moreover.  Rowan  v.  Sharpens  Rifle  Co.,  29 
Conn.  282 ;  Thomas  v.  Kelsey,  30  Barb.  268  ;  Bell  v.  Fleming,  1  Beasley 
13-490 ;  Robinson  v.  Williams,  22  N.  Y.  380 ;  Ladue  v.  The  Railroad  Co., 
13  Mich.  380 ;  Joslyn  v.  Wyman,  5  Allen  62  ;  4  Kent's  Com.  175 ;  Ward 


PERFECT  AND  IMPERFECT  MORTGAGES.    253 

his  money  according  to  the  proviso,  and  may  thus  avoid 
the  conveyance  at  law ;  or  if  the  proviso  is  not  for  an 

r.  Cooke,  2  Green  (N.  J.)  93 ;  Tully  v.  Harloe,  35  Cal.  302 ;  Goddard  v. 
Lawyer,  9  Allen  78  ;  Collins  v.  His  Creditors,  18  La.  Ann.  235 ;  Foster  r. 
Reynolds,  38  Mo.  553  ;  Philadelphia,  Wilmington  &  Baltimore  R.  R.  r. 
Woelpper,  64  Penn.  St.  366.  And  the  general  rule  appears  to  be  that  such 
advances,  if  made  in  pursuance  of  the  original  agreement,  ■will  be  pro- 
tected against  intervening  encumbrancers  and  purchasers  with  notice 
of  the  agreement,  otherwise  not :  see  Farnum  v.  Bennett,  21  N.  J.  87 ; 
see  also.  Summers  r,  Roos,  42  Miss.  749  ;  D'Meza  v.  Generis,  22  La.  Ann. 
285.  In  Ilopkinson  v.  Rolt,  9  House  Lds.  Cas.  514,  however,  it  was  held 
that  where  there  is  a  first  mortgage  to  secure  future  advances,  and  a  second 
mortgage  is  afterwards  given  of  which  the  first  mortgagee  has  notice,  all 
advances  made  after  such  notice  will  be  postponed  to  the  second  mortgage  ; 
and  see  The  Bank  of  Montgomery  County's  Appeal,  36  Penn.  St.  170. 
This  decision  overruled  the  early  case  of  Gordon  r.  Graham,  2  Eq.  Cas. 
Abr.  598,  which  was,  however,  erroneously  reported,  the  decision  being  in 
fact  the  other  way.  But  the  doctrine  in  Gordon  r.  Graham,  as  reported, 
was  followed  in  Wilson  v.  Russell,  13  Md.  495.  How  far  it  is  essential 
that  the  terms  of  the  agreement  for  future  advances  should  appear  on  the 
face  of  the  mortgage  is  not  quite  clear:  4  Kent  175.  If  the  advances  do 
not  exceed  the  nominal  amount  of  the  lien  when  recorded,  it  is  decided 
that  it  is  not  necessary  that  they  should  so  appear,  or  that  the  creditor 
should  have  notice :  Craig  v.  Tappin,  2  Sandf.  Ch.  78  ;  Cadwalader  v.  Mont- 
gomery, 3  Am.  Law  Reg.  169 ;  s.  c.  Moroney's  Appeal,  12  Har.  372;  Mil- 
ler V.  Lockwood,  32  N.  Y.  293.  In  some  of  the  states,  bond  debts  may  be 
tacked  to  a  mortgage  as  against  heirs  and  devisees,  but  not  as  against  en- 
cumbrancers. See  note  to  Marsh  v.  Lee,  1  Lead.  Cas.  Eq.  494 ;  Trescott 
V.  King,  2  Selden  147.  A  mortgage  of  personal  property  given  to  secure 
future  advances,  as  well  as  an  existing  debt,  is  valid  for  the  sum  due  {ft 
the  time  the  mortgagees  assert  their  title :  Fairbanks  v.  Bloomfield,  5  Duer 
434.  See  also,  Chapin  r.  Cram,  40  Maine  561 ;  Hamilton  v.  Rogers,  8  Md. 
301.  In  the  former  case  a  mortgage  of  stock  provided  that  all  additions 
subsequently  made,  should  be  held  in  the  same  manner  as  the  goods  then 
in  store.  It  was  held  that  this  clause  could  have  no  effect  to  vest  such  ad- 
ditions in  the  mortgagee,  without  some  further  act  by  the  mortgagor.  See, 
in  this  connection,  Carpenter  v.  Simmons,  1  Rob.  (N.  Y.)  360;  Barnard ». 
Moore,  8  Allen  (Mass.)  273  ;  Speer  r.  Skinner,  35  111.  282.  In  regard  to 
mortgages  of  personal  property  to  be  acquired  in  future,  a  very  clear  state- 
ment of  the  law  upon  the  subject  will  be  found  in  the  opinion  of  the  chan- 
cellor, in  Holroyd  v.  Marshall,  9  Jur.  N.  S.  213 ;  10  H.  L.  Cas.  191.  See 
also.  Smith urst  v.  Edmunds,  1  McCart.  413,   As  to  mortgages  by  railroads 


^54  ADAMS's    DOCTRINE    OF    EQUITY. 

avoidance  of  the  estate,  but  for  a  reconveyance  to  be  made 
by  the  mortgagee,  he  may  call  on  the  mortgagee  to  re- 
convey  accordingly,  and  on  his  refusal  may  file  a  bill  for 
specific  performance.  After  the  day  of  redemption  is 
passed,  a  special  'equity  arises  for  redemption.  The  ex- 
press remedy  under  the  proviso  is  gone;  the  mortgagee's 
estate  is  absolute  at  laAv;  and  the  mortgagor's  right,  to  the 
extent  to  which  it  was  originally  transferred  to  the  mort- 
r*m  1  S^S^^5  is  *^t  1^^  finally  extinguished.  If  he  has 
mortgaged  his  entire  estate,  e.  g.,  if  he  has  mort- 
gaged land  in  fee  simple,  he  has  no  interest  remaining;  if 
he  has  mortgaged  a  partial  estate  carved  out  of  his  own, 
e.  g.,  if,  being  tenant  in  fee,  he  has  mortgaged  for  a  term, 
he  has  only  the  reversion  expectant  thereon,^ 

The  equity  is,  that  the  real  transaction  was  a  loan  on 
security,  and  the  forfeiture  by  non-payment  a  mere 
penalty,  which  may  be  relieved  against  on  a  subsequent 
satisfaction  of  the  debt.  And  in  accordance  with  this 
equity  the  mortgagor  may  file  a  bill,  notwithstanding  for- 
feiture, praying  for  an  account  and  redemption  of  the 
estate,  and  insisting  on  a  reconveyance  by  the  mortgagee 
on  repayment  of  the  principal  and  interest  due,  together 
with  all  costs  in  equity  or  at  law  properly  incurred  by 
the  mortgagee  in  protecting  his  right.  (^)  Under  this 
head  are  included  costs  fairly  incurred  in  defending  the 
title  to  the  estate,  in  keeping  the  property  in  necessary 
repair,  in  procuring  a  renewal  of  leasehold  interests,  and 
'  so  forth  ;  but  not  the  costs  of  mere  improvements,  unless 

(6)  Dryden  v.  Frost,  3  M.  &  C.  670  5  Morley  ».  Bridges,  2  Coll.  621. 

of  subsequently  acquired  property,  see  Morrill  v.  Noyes,  56  Maine  458  ; 
Pierce  v.  Milwaukee  R.  R.  Co.,  24  Wis.  551  ;  Philadelphia,  Wilmington  & 
Baltimore  Railroad  Co.  v.  Woelpper,  64  Penn.  St.  366. 
^  Alden  v.  Garver,  32  111.  32. 


PERFECT  AND  IMPERFECT  MORTGAGES.    255 

they  were  made  by  the  mortgagor's  consent,  or  acquiesced 
in  by  him  after  notice,  (c)^       ' 

If  the  transaction  be  not  in  fact  a  loan,  but  a  hond  fide 
sale,  with  power  to  repurchase,  there  is  no  equity  to  in- 
terfere. (fZ)  A  clause  of  redemption,  however,  is  prima 
facie  evidence  of  a  loan.  And  even  if  on  the  face  of  the 
conveyance  the  transaction  is  termed  a  purchase,  yet  its 
true  character  may  be  proved  by  parol  evidence,  or  by  the 
subsequent  conduct  of  the  parties  themselves,  e.  g.,  if  the 
alleged  vendee,  instead  of  entering  into  receipt  of  the 
rents,  demands  and  receives  interest  for  his  purchase- 
money.  ((5)^ 

(c)  Sandon  ».  Hooper,  6  Bea,  246 ;  14  L.  J,  120. 

(d)  Davis  v.  Thomas,  1  R.  &  M.  506  ;  Williams  v.  Owen,  10  Sim.  386 ; 
Reversed,  12  L.  J.  207 ;  Bulwer  v.  Astley,  1  Ph.  422 ;  Belcher  v.  Varden, 
2  Coll.  162 ;  [Ford  v.  Irwin,  18  Cal.  117.] 

ie)  Maxwell©.  Mountacute,  Prec.  Chanc.  526. 

^  See  post,  note  to  page  118. 

*  A  deed  absolute  on  its  face  may  be  shown  to  be  a  mortgage  by  parol 
evidence,  and  when  it  appears  that  a  deed  was  intended  as  security  for  a 
debt,  the  debt  being  paid,  the  debtor  will  be  entitled  to  a  reconveyance  of 
the  estate  :  Kenton  v.  Vandergrift,  42  Penn.  St.  339  ;  Taylor  v.  Luther,  2 
Sum.  228;  Morris  v.  Nixon,  1  How.  U.  S.  118;  Slee  v.  The  Manhattan 
Company,  1  Paige  48  ;  Whittick  v.  Kane,  1  Id.  202 ;  Van  Buren  v.  01m- 
stead,  5  Id.  1  ;  Strong  r,  Stewart,  4  John.  Ch.  167  ;  Ross  v.  Norvell,  1 
Wash.  CVa.)  14  ;  Kunkle  v.  Wolfersberger,  6  Watts  126  ;  Reitenbaugh  ». 
Ludwick,  31  Penn.  St.  131 ;  Wilson  r.  Shoenberger,  Id.  295;  (though  see 
Alderson  v.  White,  2  De  G.  &  J.  97) ;  Todd  v.  Campbell,  32  Penn.  St. 
250;  Kellum  v.  Smith,  33  Id.  158;  Wing  v.  Cooper,  37  Vermont  169  ; 
Clark  V.  Conceit,  3  Green  (N.  J.)  358 ;  McNeill  v.  Narsworthy,  39  Ala. 
156 ;  Gay  «.  Hamilton,  33  Cal.  686  ;  Shays  v.  Norton,  48  111.  100  ;  Turner 
V.  Kerr,  44  Mo.  429 ;  PhUlips  v.  Hulsizer,  20  N.  J.  Eq.  308  ;  Whiting  v. 
Eichelberger,  16  Iowa  422;  Halo  v.  Shiek,  57  Penn.  St.  320;  Parmalee  v. 
Lawrence,  44  111.  405  ;  Odenbaugh  v.  Bradford,  67  Penn.  St.  96  ;  Sweet  v. 
Parker,  22  N.  J.  Eq.  453  ;  Horn  v.  Keteltas,  46  N.  Y.  605 ;  Harper's  Ap- 
peal, 64  Penn.  St,  315 ;  Keinck  v.  Price,  4  W.  Va.  4 ;  Crane  r.  De  Camp, 
21  N.  J.  Eq.  414.  A  court  of  law  will  not  treat  an  absolute  deed  as  a 
mortgage:  Farley  ».  Goocher,  11  Iowa  570;  Johnson's  Ex'rs.  t*.  Clark,  5 


256  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  character  of  a  security  is  once  impressed  on  the 

*conveyance,  it  is  a  rule  never  departed  from, 

L        -■    that  no  contemporaneous  stipulation  can  clog  the 

Ark.  321  ;  McDonald  v^  McLeod,  1  Ired.  Eq.  221  ;  Randall  v.  Phillips,  3 
Mason  378  ;  McLaurin  v.  Wright,  2  Ired.  Ch.  94 ;  Hudson  v.  Isbell,  5  Stew. 
&  Port.  67  ;  Murphy  «.  Trigg,  1  Monr.  72;  Lewis  v.  Robards,  3  Id.  406; 
Blair  v.  Bass,  4  Blackf.  539  ;  Delahay  v.  McConnel,  4  Scam.  156  ;  Sellers 
».  Stalcup,  7  Ired.  Eq.  13;  Hinson  v.  Partee,  11  Humph.  387  ;  Bank  of 
Westminster  v.  Whyte,  1  Md.  Ch.  536  ;  Conner  v.  Banks,  18  Ala.  42 ; 
Crews  V.  Threadgill,  35  Id.  334  ;  Murphy  v.  Calley,  1  Allen  107;  Steel  v. 
Steel,  4  Id.  417  ;  Vanderhaize  v.  Hughes,  2  Beas.  244  ;  Lockerson  v.  Still- 
well,  Id.  357  ;  Artz  v.  Grove,  21  Md.  456 ;  Rowan  v.  The  Sharpe  Rifle 
Co.,  31  Conn.  1;  Lee  v.  Evans,  8  Cal.  424;  Hovey  v.  Holcomb,  11 
111.  660;  Carter  v.  Carter,  5  Texas  93;  Russell's  Appeal,  15  Penn.  St. 
322 ;  Bragg-  v.  Massie's  Ex'rs.,  38  Ala.  89.  But  see  Thomas  v.  McCor- 
mack,  9  Dana  108  ;  Streator  v.  Jones,  1  Mur.  449;  Thompson  v.  Patton, 
5  Litt.  74 ;  Bryant  v.  Crosby,  36  Maine  562  ;  Brown  v.  Carson,  1  Busbee 
Eq.  283  ;  Mann's  Ex'rs.  v.  Falcon,  25  Texas  271 ;  Cunningham  v.  Hawkins, 
27  Cal.  603.  But  the  proof  in  such  case  must  be  clear,  strong,  and  satis- 
factory, especially  against  an  answer  denying  the  facts :  English  v.  Lane, 
1  Porter  328  ;  Conwell  v.  Evill,  4  Blackf.  67  ;  Scott  v.  Britton,  2  Yerg.  215 ; 
Fay  V.  Eastin,  2  Porter  414  ;  Lane  v.  Dickerson,  10  Yerg.  373  ;  Elliott  v. 
Maxwell,  7  Ired.  Eq.  246  ;  Chapman  v.  Hughes,  14  Ala.  218  ;  Arnold  v. 
Mattison,  3  Rich.  Eq.  153 ;  Sweet  v.  Mitchell,  15  Wis.  641  ;  Tillson  v. 
Moulton,  23  111.  648  ;  Kent  v.  Lasley,  24  Wis.  654  ;  McGinity  v.  McGinity, 
63  Penn.  St.  38^.  See  the  American  note  to  Thornbrough  v.  Baker,  2 
Lead.  Cas.  Eq.,  p.  857,  3d  Am.  ed. ;  and  to  Woollam  v.  Hearn,  Id.,  page 
404,  where  the  question  of  the  admissibility  of  parol  evidence,  in  such 
case,  is  discussed  at  large,  and  placed  upon  its  true  ground,  the  establish- 
ment of  an  equity  of  redemption  in  the  grantor,  and  not  the  creation  of  a 
parol  defeasance. 

On  the  same  principle,  equity  leans  towards  considering  an  absolute 
deed,  with  an  agreement  for  reconveyance  on  certain  conditions,  as  a 
mortgage,  and  not  a  conditional  sale  :  Pearson  v,  Seary,  35  Ala.  612  ;  Pen- 
soneau  v.  Pulliam,  47  111.  58  ;  Sharkey  v.  Sharkey,  47  Mo.  543  ;  Robinson 
V.  Willoughby,  65  N.  C.  520.  See  also  Holton  v.  Meighen,  15  Minn.  69 ; 
Fiedler  v.  Darrin,  59  Barb.  (N.  Y.)  651.  Par«)l  evidence  of  all  the  material 
facts  will  be  admitted,  and,  if  it  appear  to  have  been  really  intended  as  a 
security  for  money,  it  will  be  decreed  a  mortgage.  Great  inadequacy  of 
consideration  tends  strongly  to  establish  such  a  conclusion,  and  the  fact 
that  the  agreement  for  reconveyance  contains  no  promise  by  the  mortgagee 
to  repay  the  money,  and  that  no  personal  security  is  taken,  will  not  dis- 


PERFECT  AND  IMPERFECT  MORTGAGES.    257 

right  of  redemption,  or  entitle  the  creditor  to  more  than 
repayment  of  his  principal,  interest,  and  costs.  This  rule 
is  expressed  by  the  maxim  that  "  Once  a  mortgage 
always  a  mortgage :"  and  stipulations  repugnant  to  this 
maxim  have  been  frequently  set  aside. ^     Such,  for  ex- 


prove  it :  Russell  V.  Southard,  12  How.  U.  S.  139 ;  McLaughlin  v.  Shep- 
herd, 32  Maine  143  ;  Turnipseed  v.  Cunningham,  16  Ala.  501 ;  Poindexter 
V.  McCannon,  1  Dev.  Eq.  377  ;  "Whitney  v.  French,  25  Verm.  663  ;  Cross  v. 
Hepner,  7  Ind.  359 ;  Kerr  v.  Gilmore,  6  Watts  405 ;  Brown  v.  Nickle,  6 
Barr  390 ;  Pearson  v.  Seay,  38  Ala.  643 ;  Anthony  v.  Anthony,  23  Ark. 
4T9  ;  Stephenson  v.  Haines,  16  Ohio  St.  478  ;  Snyder  v.  Griswold,  37  111. 
216  ;  Tibbs  v.  Morris,  44  Barb.  (N.  Y.)  138  ;  Trucks  v.  Lindsey,  18  Iowa 
504 ;  Sears  v.  Dixon,  33  Cal.  326 ;  Carpenter  v.  Snelling,  97  Mass.  452 ; 
Tabor  v.  Hamlin,  Id.  489.  But  a  conditional  sale  will  unquestionably  be 
supported  where  the  intention  of  the  parties  is  clear :  Conway  v.  Alex- 
ander, 7  Cranch  218  ;  cases  cited,  note  to  Thornbrough  v.  Baker,  ut  supr., 
p.  634  ;  Forkner  t'.  Stuart,  6  Gratt.  197  ;  Yasser  v.  Yasser,  23  Miss.  (Cushm.) 
378  ;  Gait  V.  Jackson,  9  Geo.  151 ;  4  Kent  144  ;  Pitts  v.  Cable,  44  111.  103. 
A  deed  conveying  land  in  lieu  of  a  debt  cannot  be  construed  a  mortgage : 
Kearney  v.  Macomb,  1  Green  (N.  J.)  189.  No  instrument  can  be  con- 
strued a  mortgage,  in  which  there  does  not  exist  both  the  rigkt  to  foreclose 
and  the  right  to  redeem  :  Chaires  v.  Brady,  10  Florida  133.  The  test  of  the 
distinction  is  said  to  be  whether  the  relation  of  debtor  and  creditor  in  fact 
subsisted  between  the  parties :  see  Kent  143,  note.  Or,  to  borrow  the 
distinction  laid  down  in  Marvin  v.  Titsworth,  10  Wis.  320,  if  there  is  a 
conveyance  directly  to  the  creditor,  and  the  trust  is  to  be  executed  by 
him,  it  is  a  mortgage ;  if  to  a  third  party,  who  acts  as  the  agent  of  both 
the  debtor  and  the  creditor,  it  is  not  a  mortgage,  but  a  trust.  As  to  which, 
see  infra,  126;  see  also  Slowey  v.  McMurray,  27  Missouri  119;  Hickox  v. 
Lowe.  10  Cal.  197. 

'  This  is  the  universal  rule  in  equity,  and  no  agreement  in  a  mortgage 
to  change  it  into  an  absolute  conveyance,  upon  any  condition  or  event 
whatever,  will  be  allowed  to  prevail:  Clark  v.  Henry,  2  Cow.  324; 
Wheeland  v.  Swartz,  1  Yeates  579 ;  Johnston  v.  Gray,  16  S.  &  R.  361 ; 
Bloodgood  V.  Zeily,  2  Cai.  Ca.  124 ;  Stoever  v.  Stoever,  9  S.  &  R.  434 ; 
Wharf  c.  Howell,  5  Binn.  499  ;  Cooper  v.  Whitney,  3  Hill  95  ;  Palmer  v. 
Guernsey,  7  Wend.  248;  Nugent  v.  Riley,  1  Mete.  117:  Dey  v.  Dunham, 
2  John.  Ch.  182  ;  15  John.  555 ;  Hiester  v.  Madeira,  3  W.  &  S.  384.  See 
also  Rogan  v.  Walker,  1  Wis.  527 ;  Knowlton  v.  Walker,  13  Id.  264 ; 
Woods  V.  Wallace,  22  Penn.  St.  171 ;  Locke  v.  Palmer,  26  Ala.  312.  Al- 
though in  the  writing  creating  an  equitable  mortgage  the  time  of  redemp- 
17 


258  ADAMS's    DOCTRINE    OF    EQUITY. 

ample,  are  agreements  for  restricting  the  right  of  redemp- 
tion to  a  limited  time,  (/)  for  restricting  it  to  a  particular 
line  of  heirs,  [gY  for  entitling  the  mortgagee  after  default 
to  purchase  at  a  specific  sum,  (A)  for  converting  arrears  of 
interest  into  principal,  so  as  in  effect  to  give  compound 
interest,  (/)  for  allowing  the  mortgagee  a  perc^^ntage  as 
receiver,  beyond  interest  on  the  money  advanced,  (/r)  or 
for  allowing  him,  when  in  possession  under  a  West  Indian 
mortgage,  a  like  percentage  as  consignee  of  the  produce. 
There  is  a  different,  and  apparently  exceptional,  rule 
in  favor  of  a  West  Indian  mortgage  out  of  possession. 

{f)  Newcomb  v.  Bonham,  1  Vern.  7. 

[g]  Howard  v.  Harris,  2  Ch.  Ca.  147. 

\h)  Willett  V.  Winnell,  1  Vern.  488. 

[i)   Blackburn  v.  Warwick,  2  Y.  &  C.  92. 

[Ti]  Davia  v.  Dendy,  3  Madd.  170;  Langstaffe  v.  Fenwick,  10  Ves.  405. 

tion  is  limited,  yet  such  limitation  has  no  effect  on  the  right  to  redeem. 
Once  a  mortgage  always  a  mortgage :  Stover  v.  Bounds,  1  Ohio  St.  107. 
See  also  note  to  Thornbrough  v.  Baker,  2  Lead.  Cas.  Eq,  857 ;  Clark  v. 
Condit,  3  Green  (N.  J.)  358.  The  purchase  of  the  equity  of  redemption 
by  a  mortgagee  is  viewed  with  great  disfavor  in  equity,  and  will  be  avoided, 
for  constructive  fraud  or  unconscientious  advantage  :  Russell  ».  Southard, 
12  How.  U.  S.  139 ;  Piatt  v,  McClure,  3  Wood.  &  M.  151  ;  note  to  Thorn- 
brough V.  Baker,  ut  sup.  But  if  perfectly  fair  it  will  be  sustained:  Sheckell 
V.  Hopkins,  2  Md.  Ch.  89 ;  McKinstry  v.  Conly,  12  Ala.  678 ;  Torill  v. 
Skinner,  1  Pick.  213 ;  Green  v.  Butler,  26  Cal.  595 ;  Decker  v.  Hall,  1  Edm. 
(N.  Y.)  Sel.  Cas.  279.  Such  a  purchase  will  generally  create  a  merger  of 
the  mortgage :  Jenning's  Lessee  v.  Wood,  20  Ohio  261 ;  Bailey  v.  Richard- 
son, 9  Hare  734;  though  not  necessarily:  Polk  v.  Reynolds,  31  Md.  106. 
But  this  may  be  prevented  by  taking  the  conveyance  of  the  equity  of  re- 
demption in  the  name  of  a  trustee,  with  a  declaration  of  the  intention  to 
that  effect :  Bailey  v.  Richardson,  9  Hare  734.  And  equity  will  in  general 
relieve  against  such  merger,  if  necessary  :  Slocum  v.  Catlin,  22  Verm.  137. 
A  decree  of  foreclosure  does  not  merge  the  lien  of  the  mortgagee ;  that 
continues  until  the  debt  is  paid  or  discharged :  Hendershott  v.  Ping,  24 
Iowa  134. 

^  See  Johnston  v.  Gray,  16  S.  &  R.  361 ;  Slowey  e.  McMurray,  27  Miss, 
113. 


PERFECT    AND    IMPERFECT    MORTGAGES.         259 

And  he  is  allowed  to  insist  on  being  consignee  of  the 
produce,  with  the  usual  percentage  on  the  consignments 
made.(/) 

The  relief  thus  given  on  a  forfeited  mortgage  was  at 
first  confine^,  to  Courts  of  equity,  and  the  forfeiture  at 
law  continued  absolute.  A  partial  jurisdiction  has  been 
now  created  at  law,  but  it  is  confined  to  cases  of  the 
simplest  kind,  and  does  not  apply  even  to  them  if 
any  suit  of  foreclosure  or  redemption  has  been  com- 
menced. 

The  enactment  on  this  subject  is,  that  where  an  action 
is  brought  by  a  mortgagee,  either  for  payment  of  the 
money  or  for  possession  of  the  estate,  and  no  suit  of  fore- 
closure or  of  redemption  is  pending,  if  the  mortgagor 
shall  appear  and  become  defendant  in  the  action,  and 
shall  *pay  to  the  mortgagee,  or  on  his  refusal,  p^^  ^  o-i 
shall  bring  into  Court  the  principal,  interest,  and 
costs,  the  Court  of  law  may  discharge  him  from  the  mort- 
gage, and  may  compel  the  mortgagee  to  reconvey.  By 
the  same  statute  it  is  enacted,  that  where  a  bill  of  fore- 
closure is  filed,  the  Court  of  equity  may,  on  the  defend- 
ant's application,  and  on  his  admitting  the  plaintiff's 
title,  make  such  order  or  decree  before  the  hearing  as 
it  might  have  made  if  the  suit  had  been  brought  to  a 
hearing.  But  the  act  does  not  apply  to  cases  where  the 
right  of  redemption  or  the  sums  chargeable  are  in  contro- 
versy, (m) 

The  mortgagor's  right  to  redeem  is  technically  called 
his  "  Equity  of  Redemption,"  and  is  treated  as  a  continu- 

(Z)  Bunbury  v.  Winter,  1  Jac.  &■  W.  255 ;  Leith  r.  Irvine,  1  M.  &  K.  277 ; 
Falkner  v.  Daniel,  3  Hare  218. 

(w)  7  Geo.  2,  c.  20  ;  Bastard  v.  Clarke,  7  Ves.  489 ;  Praed  v.  Hull,  1  S. 
&  S.  331 5  Piggin  v.  Cheatham,  2  Hare  80 ;  Reeves  v.  Glastonbury  Canal 
Company,  14  Sim.  351. 


260  ADAMs's    DOCTRINE    OF    EQUITY. 

ance  of  his  old  estate,  subject  to  the  mortgagee's  pledge 
for  repayment.^ 

It  therefore  remains  subject  to  the  ordinary  incidents  of 

'  Contracts  made  with  the  mortgagor  to  lessen  or  embarrass  the  right  of 
redemption,  are  regarded  with  jealousy:  Holridge  v.  Gillespie,  2  John.  Ch. 
34.  And  a  mortgagee  before  foreclosure  can  do  no  act  to  bind  the  mort- 
gagor when  he  offers  to  redeem  :  Wilson  v.  Troup,  7  Johns.  Ch.  25.  But 
a  contract  not  to  prefer  a  bill  to  redeem  within  a  limited  time  is  good. 
Such  a  contract,  however,  with  a  further  stipulation  that  at  the  expiration 
of  the  time  stipulated,  there  should  be  a  foreclosure,  unless  the  debts  were 
paid,  is  void,  or  at  least  voidable:  Daniels  v.  Mowry,  1  R.  I.  151.  See, 
however.  Stover  v.  Bounds,  1  Ohio  St.  197.  A  Court  of  equity  will  re- 
strain a  mortgagee  from  proceeding  at  law  to  sell  the  equity  of  redemption, 
or  put  him  to  his  election  either  to  proceed  directly  on  his  mortgage  or  to 
seek  other  property  (where  the  rights  of  creditors  do  not  interfere),  or  the 
person  of  the  debtor  for  the  satisfaction  of  the  debt :  Tice  v.  Annin,  2 
John.  Ch.  125.  As  a  general  rule,  no  person  can  come  into  a  Court  of 
equity  for  a  redemption,  unless  he  is  entitled  to  the  estate  of  the  mort- 
gagor, or  claims  a  subsisting  interest  under  it :  Grant  v.  Duane,  9  John. 
591  ;  Welch  v.  Beers,  8  Allen  (Mass.)  151 ;  Gage  v.  Brewster,  31  N.  Y. 
218. 

As  to  the  right  of  redeihption  by  the  mortgagor,  his  executors,  adminis- 
trators, heirs  and  assigns,  see  Smith  v.  Manning's  Ex'rs.,  9  Mass.  422 ; 
Wilkins  v.  Sears,  4  Monr.  347  ;  Douglas  v.  Sherman,  2  Paige  358 ;  Skinner 
V.  Miller,  5  Litt.  85  ;  Bell  v.  Mayor  of  New  York,  10  Paige  49  ;  Beach  v. 
Cooke,  28  N.  Y.  508 ;  Merriam  v.  Barton,  14  Verm.  501  ;  Sheldon  v. 
Bird,  2  Root  509  ;  ^Craik  ».  Clark,  2  Hay.  22 ;  Farrell  v.  Parlier,  50  111. 
274.  By  judgment  creditors,  see  Hitt  v.  Holliday,  2  Litt.  332 ;  Dabney  v. 
Green,  4  Hen.  &  Munf.  101 ;  Bigelow  v.  Willson,  1  Pickering  485^  and  by 
subsequent  encumbrancers,  see  Burnet  v.  Denniston,  5  John.  Ch.  35  ; 
Cooper  V,  Martin,  1  Dana  25  5  Brown  v.  Worcester  Bank,  8  Mete.  47  ;  Watt 
V.  Watt,  2  Barb.  Ch.  371  ;  McHenry  v.  Cooper,  27  Iowa  137 ;  Johnson  v. 
Harmon,  19  Id.  56.  See  also,  Pearce  v.  Morris,  L.  R.  8  Eq.  217  ;  and 
the  right  of  a  subsequent  mortgagee  to  pay  off  a  debt  secured  by  a  prior 
mortgage,  is  not  affected  by  an  agreement  by  the  parties  to  such  mortgage 
for  a  higher  rate  of  interest  than  that  specified  in  the  mortgage :  Gardner 
V.  Emerson,  40  111.  296. 

He  who  redeems  must  pay  the  whole  debt:  Adams  v.  Brown,  7  Cush. 
220  •,  Knowles  v.  Rablin,  20  Iowa  101  ;  though  the  debt  secured,  or  part 
of  it,  has  become  separated  from  the  mortgage  by  becoming  the  property 
of  a  different  person  :  Johnson  v.  Candagc,  31  Maine  28  ;  or  has  become 
barred  by  the  statute :  Balch  v.  Onion,  4  Cush.  559. 


PERFECT  AND  IMPERFECT  MORTGAGES.    261 

the  estate ;  it  passes  in  the  same  course  of  devolution ;  it 
may  be  devised,  settled,  or  conveyed  in  the  same  way ; 
or  may  be  transferred  to  a  new  claimant  by  mere  length 
of  enjoyment,  (w)  And  the  parties  making  title  by  these 
or  any  other  means  to  the  mortgagor's  estate,  have  the 
same  right  with  himself  to  sue  for  redemption.  If  there 
be  several  persons  all  claiming  under  the  mortgagor,  they 
will  be  entitled  to  redeem  successively  according  to  their 
priorities.  Where  the  mortgagor's  estate  has  altogether 
determined,  and  the  only  claim  is  in  the  lord  by  escheat, 
a  different  question  arises;  for  escheat  .is  a  mere  incident 
of  the  law  of  tenure,  and  that  law,  as  we  have  already 
seen,  does  not  apply  to  equitable  estates,  (o)  In  accord- 
ance with  this  principle,  the  rule  appears  to  be,  that  if  the 
mortgage  be  in  fee,  so  that  the  whole  estate  is  transferred 
to  the  mortgagee,  and  nothing  remains  in  the  mortgagor 
*which  can  escheat  at  law,  the  lord  is  not  entitled ;  p^-.  -.  . -. 
but  if  the  mortgage  be  for  a  term  only,  so  that  a 
reversion  is  left  which  may  escheat  at  law,  the  incidental 
equity  will  pass  with  it.  (oo) 

Another  result  of  the  principle  which  treats  the  equity 
of  redemption  as  a  continuance  of  the  old  estate,  is  that 
so  long  as  the  mortgagor  is  left  in  possession,  he  is  con- 
sidered to  hold  in  respect  of  his  ownership.^     The  ordi- 

(n)  Cholmondely  r.  Clinton,  4  Bligh,  0.  S.  1  ;  3  &  4  Wm.  4,  c  27,  s.  24. 

(o)  Supra. 

{oo)  Burgess  v.  Wheate,  1  Eden  177 ;  Downe  r.  Morris,  3  Hare  394. 

^  As  between  the  mortgagor  and  third  persons,  the  mortgagor  is  to  be 
considered  as  possessed  of  the  freehold  :  Wilkins  v.  French,  20  Maine  111 ; 
Ellison  V.  Daniels,  11  N.  H.  274  ;  Wellington  v.  Gale,  7  Pick.  159;  Groton 
V.  Roxborough,  6  Mass,  50 ;  Hitchcock  v.  Harrington,  6  John.  295 ;  White 
p.  Whitney,  3  Met.  81  ;  Norwich  v.  Hubbard,  22  Conn.  587  ;  Whitney  v. 
French,  25  Verm.  663  ;  Johnson  v.  Brown,  11  Foster  405;  Carpenter  ». 
Bowen,  42  Miss.  28  ;  Woods  v.  Hilderbrand,  46  Mo.  284.     A  conveyance 


262  ADAMS's    DOCTRINE    OF    EQUITY. 

nary  practice  now  is,  that  he  should  be  so  left  in  possession, 
and  that  the  mortgagee  should  receive  regular  payments 

of  the  land  by  the  mortgagee,  before  entry,  without  a  transfer  of  the  debt, 
passes  no  interest  or  title  in  the  land:  Smith  v.  Smith,  15  N.  H.  55.  A 
parol  assignment  of  a  mortgage,  though  endorsed  on  the  mortgage  deed, 
and  delivered  and  recorded  with  it,  will  not  support  a  writ  of  entry  by 
the  assignee  to  foreclose  the  mortgage  :  Adams  v.  Parker,  12  Gray  (Mass.) 
53.  And  in  Pennsylvania,  it  has  never  been  understood  that  such  privity 
exists  as  that  the  mortgagee  can  compel  the  tenant  of  the  mortgagor  to 
pay  him  the  rent  whether  the  lease  was  executed  before  or  after  the  mort- 
gage :  Myers  v.  White,  1  Rawle  355.  In  New  York,  it  has  been  held  that  the 
mortgagee  has  no  right  to  the  freehold,  or  to  anything  more  than  a  bare 
possession,  even  as  between  himself  and  the  mortgagor :  Runyan  v.  Mer- 
sereau,  11  John.  534;  Astor  u.  Miller,  2  Paige  68.  See  Hughes  v.  Ed- 
wards, 9  Wheat.  499;  Tucker  v.  Keeler,  4  Verm.  161 ;  Northampton  Paper 
Mills  V.  Ames,  8  Metcalf  1 ;  Smith  v.  Moore,  11  N.  H.  55  ;  Frothingham  v. 
McKusick,  24  Maine  403  ;  Oovell  v.  Dolloff,  31  Id.  104  ;  Henshaw  v. 
Wells,  9  Humph.  568  ;  4  Kent  Com.  160.  A  mortgagee  has  no  title,  only 
alien:  Jackson ».  Lodge,  36  Cal.  28.  Fletcher  v.  Holmes,  32  Ind.  497; 
Williams  v.  Beard,  1  S.  C.  309  ;  compare  Mack  v.  Wetzlar,  39  Cal.  247. 
The  contrary  doctrine  is  held  in  Tennessee:  Carter  v.  Taylor,  3  Head  30. 
In  most  of  the  United  States,  an  equity  of  redemption  is  subject  to  dower, 
and  liable  to  sale  on  execution.  See  4  Kent  Com.  161 ;  though  see  Otley 
V.  Haviland,  36  Miss.  19 ;  Decker  v.  Hall,  1  Edm.  (N.  Y.)  Sel.  Cas.  279.  See 
also,  Hitchcock  v.  Merrick,  18  Wis.  357 ;  Williams  v.  To  wnshend,  31  N.  Y.  41 1. 

Though  a  mortgagor  in  possession  is  thus  treated  in  most  respects  as 
owner,  yet  he  may  be  restrained  by  injunction  from  such  acts  of  waste  as 
will  impair  the  value  of  the  security :  Cooper  v.  Davis,  15  Conn.  556 ; 
Brady  v.  Waldron,  2  John.  Ch.  148.  Or  an  action  will  lie :  Van  Pelt  v. 
McGraw,  4  Comst.  110.  See  Langdon  v.  Paul,  22  Verm.  205 ;  though  see 
4  Kent  Com.  161. 

The  owner  of  the  equity  of  redemption  is  liable  for  the  taxes,  before 
possession  by  the  mortgagee.  Hence,  if  he  buys  at  a  sale  of  the  land  for 
taxes,  it  will  be  considered  merely  a  form  of  payment,  and  he  will  acquire 
no  greater  title  than  he  had  before :  Frye  v.  Bank  of  Illinois,  11  111.  367 ; 
Ralston  v.  Hughes,  13  Id.  469.  The  payment  of  taxes  by  the  mortgagor 
is  to  be  credited  in  satisfaction  of  interest  and  not  of  principal :  Cook  v. 
Smith,  1  Vroom  (N.  J.)  387. 

In  Maine,  where  mortgaged  lands  are  taxed  in  the  name  of  the  mort- 
gagee, no  title  passes  on  a  sale  therefor :  Coombs  v.  Warren,  34  Maine  89. 

A  mortgagee  not  having  been  in  possession  recovering  in  ejectment 
against  an  occupant,  cannot  recover  for  mesne  profits  prior  to  his  entry 


PERFECT  AND  IMPERFECT  MORTGAGES.    263 

of  interest,  and  should  be  entitled  to  call  for  his  princi- 
pal at  six  months'  notice.  If  there  be  an  express  agree- 
ment that  the  mortgagor  shall  have  possession  for  a 
specified  period,  he  is  a  termor  for  that  period  at  law ;  if 
there  be  no  express  agreement,  or  if  he  continue  to  hold 
after  determination  of  the  specified  period,  he  is  at  law 
merely  an  occupant  by  permission,  and  may  be  ejected  at 
any  moment  by  the  mortgagee.  So  long,  however,  as  the 
mortgagee  does  not  exert  his  power,  the  mortgagor  is  con- 
sidered in  equity  to  hold  as  owner,  and  is  entitled  to  the 
rents  in  that  character.  He  cannot,  therefore,  be  made 
accountable  for  bygone  rents,  (jt?)^  But  if  the  security  be 
insufficient  he  may  be  restrained,  at  the  instance  of  the 
mortgagee,  from  cutting  timber  on  the  mortgaged  pre- 
mises. (§')  If  the  possession  of  the  mortgagor  continue 
for  twenty  years,  the  mortgagee  may  under  the  circum- 
stances be  altogether  barred  of  his  right.  The  effect  of 
such  possession,  under  the  old  law,  without  demand  of 
possession  by  the  mortgagee,  or  receipt  or  demand  of 
principal  or  interest,  was  to  raise  a  presumption  that  the 
debt  was  satisfied.  And  by  the  present  law  it  is  ex- 
pressly declared,  that  a  mortgagee  out  of  possession  shall 
not  proceed,  either  at  law  or  in  equity,  to  recover  the 
land,  except  within  twenty  years  after  he  last  had  posses- 

{p)  Ex  parte  Wilson,  2  Vea.  &  B.  252. 
(?)  King  V.  Smith,  2  Hare  239. 

under  the  judgment  in  ejectment:  Litchfield  v.  Ready,  5  Exch.  939.  Nor, 
prior  to  a  judgment  in  ejectment,  or  entry,  can  he  maintain  trespass  : 
Turner  v.  Cameron's,  &c.,  Co.  5  Exch,  932.  See  Northampton  Paper  Mills 
».  Ames,  8  Met.  1. 

^  The  mortgagor  may  authorize  a  second  mortgagee  to  collect  the  rents, 
and  apply  them  as  payments  on  his  mortgage,  and  the  court  will  not  re- 
strain him,  on  application  of  the  first  mortgagee,  even  after  the  filing  of  a 
bill  for  foreclosure :  Best  v.  Schermier,  2  Halst.  Ch.  154. 


264  ADAMS's    DOCTRINE    OF    EQUITY. 

r*-(  1  t;-j  sio^?  *<^^  after  the  last  payment  of  any  principal 
or  interest,  (r)^  The  same  principle  which  treats 
the  mortgagor's  equity  as  the  actual  ownership,  neces- 
sarily involves  the  conclusion,  that  the  mortgagee's  legal 
estate  is  e  converso  a  mere  pledge  for  repayment. 

In  some  sense,  therefore,  the  mortgagee  is  treated  as 
a  trustee  for  the  mortgagor,  or  rather  he  is  liable  to  he 

(r)  Christophers  v.  Sparke,  2  J.  &  W.  223  ;  3  &  4  Wm.  4,  c.  27,  ss.  2,  3  ; 
7  Wm.  4  &  1  Vict.  c.  28 ;  3  &  4  Wm.  4,  c.  42,  s.  3. 

^  The  general  rule  is,  that  there  may  be  redemption  within  twenty- 
years  ;  but  upon  equitable  circumstances  it  may  be  allowed  after  a  much 
longer  time :  Ross  v.  Norwell,  1  Wash.  ( Va.)  19.  The  possession  to  bar  the 
equity  of  redemption  must  be  actual,  quiet  and  uninterrupted  possession  for 
twenty  years,  or  a  period  of  time  sufficient  to  toll  the  right  of  entry  at  law  : 
Moore  v.  Cable,  1  Johns.  Ch.  385 ;  Demarest  v.  Wynkoop,  3  Id.  129 ;  Slee 
V.  Manhattan  Co.,  1  Paige  48  ;  Fenwick  v.  Macey,  1  Dana  279  ;  Morgan  v. 
Morgan,  10  Geo.  297 ;  Cromwell  v.  Bank  of  Pittsburgh,  2  Wallace,  Jr. 
569 ;  Blithe  v.  Dwinal,  35  Maine  556.  But  so  long  as  the  mortgagee  re- 
cognises the  mortgage  in  any  way,  the  presumption  will  not  begin  to  run : 
Morgan  v.  Morgan,  ut  supr.  It  is  not  so  much  the  possession,  as  the  na- 
ture of  the  possession,  which  operates  in  equity  as  a  bar  to  redemption. 
Time  does  not  begin  to  run  against  the  right  to  redeem  so  long  as  the 
mortgagee  continues  to  hold  as  such :  Richmond  v.  Aiken,  25  Verm.  324. 
Irv  a  suit  by  the  mortgagor  to  redeem,  the  Statute  of  Limitations  will  not 
avail  the  mortgagee,  unless  he  has  been  in  actual  possession  of  the  land. 
In  Missouri,  payment  of  taxes  on  wild  land  is  not  equivalent  to  posses- 
sion :  Bollinger  v.  Chouteau,  20  Mo.  89.  So  where  a  mortgage  was  given 
on  wild  land,  of  which  neither  party  was  in  possession,  there  being  evi- 
dence that  the  debts  were  unpaid,  the  lapse  of  thirty  years  was  held  no  bar 
to  a  foreclosure :  Chouteau  v.  Burlando,  20  Mo.  482. 

In  some  of  the  states,  fifteen  years'  possession,  where  no  statute  disabili- 
ties or  special  circumstances  equivalent  thereto  exist,  will  bar  an  equity 
of  redemption  :  Skinner  v.  Smith,  1  Day  124;  Crittenden  v.  Brainard,  2 
Root,  485 ;  Richmond  v.  Aiken,  25  Verm.  324 ;  see  Robinson  v.  Fife,  3  Ohio 
N.  S.  551. 

On  the  other  hand,  after  the  lapse  of  twenty  years,  the  mortgagor  being 
in  possession  and  no  interest  paid,  there  is  a  presumption  of  satisfaction  of 
the  mortgage  debt :  Boyd  v.  Harris,  2  Md.  Ch.  210  ;  Roberts  v.  Welch,  8 
Ired.  £q.  287  ;  Ayres  v.  Waite,  10  Cush.  72  ;  Cheever  v.  Perley,  11  Allen 
584.  Otherwise  where  the  possession  has  been  in  the  mortgagee :  Crooker 
a.  Jewell,  31  Maine  306.     See  Martin  v.  Jackson,  27  Penn.  St.  504. 


PERFECT  AND  IMPERFECT  MORTGAGES.    265 

made  a  trustee  by  payment  of  his  claim.  But  nothing 
short  of  payment  can  affect  his  right.  He  is  not  bound 
to  reconvey  on  a  deposit  of  the  money  in  Court,  however 
inconvenient  his  refusal  may  prove ;  nor  is  he  even  bound 
to  allow  an  inspection  of  the  title  deeds  until  the  money 
is  actually  in  his  hands,  (s)^  And  so  long  as  the  mortgage 
remains  undischarged,  he  is  entitled  to  settle  and  deal 
with  it  as  his  own,  and  if  his  so  doing  renders  the  re- 
demption more  expensive,  the  mortgagor  must  neverthe- 
less defray  the  expense.  (^) 

The  parties  to  whom  the  mortgagee  may  transfer  his 
interest,  or  who  may  otherwise  make  title  to  his  estate, 
are  of  course  bound  by  the  same  equity  as  himself;  but 
if  his  estate  has  escheated,  and  redemption  is  asked 
against  the  lord,  there  appears  to  be  some  question 
whether  the  equity  is  binding.  It  has  been  contended 
that  there  is  a  difference  in  this  respect  between  a  trust 
and  an  equity  of  redemption,  and  that  although  the  lord 
is  not  bound  by  a  trust,  unless  he  is  party  or  privy  to  it, 
yet  that  he  shall  be  bound  by  an  equity  of  redemption, 
whether  he  were  privy  or  not.(w)^  The  distinction,  how- 
ever, it  would  probably  be  difficult  to  sustain. 

(«)  Brown  v.  Lockhart,  10  Sim.  421 ;  Richards  r,  Platel,  Cr.  &  P.  79 ; 
Postlethwaite  v.  Blythe,  2  Sw.  256. 

{t)  Wetherell  t>.  Collins,  3  Madd.  255  ;  Bartle  v.  Wilkins,  8  Sim.  238  ; 
Barry  v.  Wrey,  3  Buss.  465;  Re  Marrow,  Cr.  &,  P.  142;  Re  Townsend,  2 
Ph.  348. 

(u)  Burgess  t?.  Wheate,  1  Eden  177:  Attorney-General  v.  Duke  of  Leeds, 
2  M.  &  K.  343. 

^  The  renewal  of  a  note  secured  by  mortgage,  is  not  such  a  payment  as 
will  discharge  the  mortgage  unless  so  intended:  Parkhurst  r.  Cummings, 
56  Me.  135 ;  nor  is  it  defeated  or  impaired  by  partial  payments  ;  the  mort- 
gage lien  remains  so  long  as  the  debt  is  unpaid  :  Chase  v.  Abbott,  20  Iowa 
154.  Though  see  Smith  v.  Smith,  32  111.  198.  Money  paid  to  the  mortgagee 
designed  at  the  time  to  be  applied  as  payment,  will  operate  to  extinguish 
the  mortgage  to  that  amount :  Champney  v.  Coope,  32  X.  Y.  543. 

*  In  most  of  the  United  States  it  is  provided  by  statute  that  on  the 


266  ADAMS's    DOCTRINE     OF    EQUITY. 

r*llfi1  *The  statutory  remedy  against  escheat  in  the 
case  of  a  trustee,  has  already  been  considered, 
under  the  subject  of  trusts.  And  we  had,  at  the  same 
time,  occasion  to  notice  the  analogous  remedies  provided 
by  another  statute,  in  the  event  of  lunacy  or  infancy 
of  a  trustee,  and  in  the  event  of  a  trustee  being  out  of 
the  jurisdiction,  of  doubts  as  to  survivorship  or  heirship, 
and  of  a  refusal  to  convey  when  properly  required. (i>) 
The  provisions  with  respect  to  lunacy  and  infancy,  are 
expressly  made  applicable  to  mortgages  also.  The  appli- 
cability of  the  other  provisions  has  been  a  subject  of 
some  discussion.  But  the  doubts  are  now  cleared  up  by  a 
later  statute,  which  after  reciting  the  two  former  acts, 
provides  for  the  case  of  a  mortgagee  who  has  died  with- 
out having  been  in  possession  and  to  whose  executor  or 
administrator  the  mortgage-money  has  been  paid,  and 
expressly  confines  the  operation  of  the  former  acts  to 
that  particular  case,  (w)  The  enactments  of  the  statute 
referred  to  are  that,  "where  any  person  seised  of  land 
by  way  of  mortgage,  shall  have  departed  this  life  with- 
out having  been  in  possession  of  such  land,  or  in  the  re- 
ceipt of  the  rents  and  profits  thereof,  and  the  money  due 
in  respect  of  such  mortgage  shall  have  been  or  shall  be 
paid  to  his  executor  or  administrator,  and  the  devisee  or 
heir  or  other  real  representative,  or  any  of  the  devisees  or 
heirs,  or  real  representatives,  of  such  mortgagee  shall  be 
out  of  the  jurisdiction,  or  not  amenable  to  the  process  of 
the  Court  of  Chancery,  or  it  shall  be  uncertain,  where 

(u)  3  &  4  Wm.  4,  c.  23  •,  11  Geo.  4  &  1  Wm.  4,  c.  60,  supra. 
(w)   1  &  2  Vict.  c.  69. 

escheat  of  land  it  shall  be  held  upon  the  same  trusts  and  under  the  same 
encumbrances  as  before :  4  Kent's  Com,  425;  1  Greenleaf's  Cruise  417; 
note  to  Hill  on  Trustees,  4th  Am.  ed.  78. 


PERPECT  AND  IMPERFECT  MORTGAGES.    2G7 

there  are  several  devisees  or  representatives  who  were 
joint  tenants,  which  of  them  was  the  snrvivor,  or  it  shall 
be  uncertain  whether  any  such  devisee  or  heir  or  repre- 
sentative be  living  or  dead,  or  if  known  to  be  dead,  it 
shall  not  be  known  who  was  his  heir,  or  where  such 
mortgagee  or  any  such  devisee  or  heir,  or  representative 
shall  have  died  without  an  heir,  or  if  any  such  devisee  or 
heir  or  representative  shall  neglect  or  refuse  to  convey 
such  land  for  the  space  of  twenty-eight  *days  next  r-^^-,  -.  ^-i 
after  a  proper  deed  for  making  such  conveyance 
shall  have  been  tendered  for  his  execution  by,  or  by  an 
agent  duly  authorized  by,  any  person  entitled  to  require 
the  same,  then  and  in  every  such  case  it  shall  be  lawful 
for  the  Court  of  Chancery  to  direct  any  person  whom  such 
Court  may  think  proper  to  appoint  for  that  purpose,  in 
the  place  of  the  devisee,  heir,  or  representative  (whether 
such  devisee,  heir,  or  representative  shall  or  shall  not 
have  a  beneficial  interest  in  the  money  paid  to  the  execu- 
tor or  administrator  as  aforesaid),  to  convey  such  land  in 
like  manner  as  by  the  said  first  recited  act,  the  said 
Court  is  empowered  to  appoint  a  person  to  convey  in  the 
cases  therein  mentioned  in  the  place  of  a  trustee  or  the 
heir  of  a  trustee,  and  every  such  conveyance  shall  be  as 
effectual  as  if  such  devisee  or  heir  or  representative  had 
executed  the  same."  And  it  is  further  enacted,  that  the 
provisions  of  this  act  shall  embrace  the  same  objects  as 
they  would  have  done  if  they  had  formed  part  of  the 
said  recited  acts,  and  should  not  extend  to  the  case 
of  any  person  dying  seised  of  any  land  by  way  of  mort- 
gage other  than  such  as  are  in  such  act  expressly  pro- 
vided for.(2r) 

(z)  Re  Goddard,  1  M.  &  K.  25  :  Prendergast  v.  Eyre,  LI.  &  G.  181 ;  Kx 
parte  Whitton,  1  K.  279-,  Green  v.  Holden,  1  Bea.  207. 


268  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  mortgagee  is  dissatisfied  with  the  security  for 
his  debt,  he  may  enforce  payment  by  an  action  at  law,  or 
may  take  possession  of  the  mortgaged  estate  ;  or  he  may, 
if  he  choose,  pursue  both  these  remedies  at  the  same  time, 
and  any  other  which  his  contract  confers.  For  the  right 
to  do  so  is  part  of  his  security,  and  if  the  mortgagor  is 
inconvenienced  by  its  exercise,  his  proper  remedy  is  pay- 
ment of  the  debt.(y)^ 

If  the  mortgagee  takes  possession  of  the  estate,  he  is 
treated  in  equity  as  holding  in  respect  of  his  security, 
and  must  deal  with  the  estate  in  conformity  with  that 
character.  He  is  bound  therefore  to  keep  the  premises 
r*1 1 81  ^^  necessary  *repair,  but  is  not  bound  to  spend 
more  than  is  strictly  necessary.  He  must  account 
for  all  the  moneys  which  he  in  fact  has  received,  or  which 
without  wilful  default  he  might  have  received,  but  is  not 
bound  to  take  the  trouble  of  making  the  most  of  the 
property.  He  is  entitled  to  receive  any  incidental  benefit, 
provided  it  be  of  a  pecuniary  kind,  and  therefore  appli- 
cable in  liquidation  of  his  debt ;  but  if  it  be  not  of  that  - 
character,  as,  for  example,  if  it  be  the  presentation  to  a 

(y)  Schoole  v.  Sail,  1  Sch.  &  L.  176;  Drummond  v.  Pigou,  2  M.  &  K. 
168 ;  Lockhart  v.  Hardy,  9  Bea.  349. 


^  The  mortgagee  may  enter  or  maintain  ejectment :  Hughes  v.  Edwards, 
9  Wheaton  489 ;  Dunkley  v.  Van  Buren,  3  John.  Ch.  330 ;  Galium  v. 
Emanuel,  1  Ala.  22.  See  also  Fluck  v.  Replogle,  13  Penn.  St.  406 ;  Smith 
V.  Schuler,  12  S.  &  R.  240 ;  Martin  ».  Jackson,  27  Penn.  St.  504 ;  Clay  v. 
Wren,  34'Maine  187 ;  Wilhelm  v.  Lee,  2  Md.  Ch.  322 ;  Brown  v.  Stewart, 
1  Id.  87;  Wheeler  v.  Bates,  1  Foster  (N.  H.)  460;  Youngman  v.  Elmira 
R.  R.,  65  Penn.  St.  278  ;  Allen  v.  Ranson,  44  Mo.  263.  See,  in  Vermont, 
under  the  statute  of  that  state.  Pierce  v.  Brown,  24  Verm.  165.  The 
mortgagee  is  entitled  to  pursue  all  his  remedies  at  once :  Brown  v.  Stewart, 
ut  sup.  A  mere  entry  for  a  particular  purpose  will  not,  however,  be  deemed 
to  be  a  taking  possession :  Great  Falls  Co.  v.  Worster,  15  N.  H.  412. 


PERFECT  AND  IMPERFECT  MORTGAGES. 


269  ' 


vacant  living,  the  mortgagor  must  have  it  as  the  real 
owner,  (0)^ 

(2)  Mackensie  r.  Robinson,  3  Atk.  559. 

^  A  mortgagee  in  possession  is  accountable  for  the  profits  really  made, 
and  no  further,  except  in  case  of  gross  negligence :  Bainbridge  v.  Owen,  2 
J.  J.  Marsh  465  ;  Van  Buren  v.  Olmstead,  5  Paige  9  ;  Bell  v.  The  Mayor, 
&c.,  of  New  York,  10  Paige  49 ;  Strbng  v.  Blanchard,  4  Allen  538 ;  An- 
thony V.  Rogers,  20  Mo.  281 ;  and  is  not,  in  general,  chargeable  with  interest 
on  rents:  Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  339.  But  see  Shaeffer 
V.  Chambers,  2  Halst.  Ch.  548  ;  Boston  Iron  Co.  v.  King,  2  Cush.  400;  as 
to  where  rests  will  be  allowed.  See  also  Smith  v.  Pilkington,  1  De  G.,  F. 
&  J.  120.  Rents  received  by  a  mortgagee  should  be  applied  to  keep  down 
the  interest :  Saunders  v.  Frost,  5  Pickering  260 ;  McConnel  v.  Holobush, 
11  111.  61 ;  Moore  v.  Cable,  1  John.  Ch.  385  -,  Bell  v.  New  York,  10  Paige 
49 ;  Rawling  v.  Stewart,  1  Bland  22.  Then  to  the  payment  of  the  prin- 
cipal :  Mahone  v.  Williams,  39  Ala.  202.  But  a  mortgagee  is  not  entitled 
to  compensation  for  his  trouble  in  managing  the  estate,  whether  the  parties 
have  agreed  to  make  such  allowance  or  not :  Breckenridge  v.  Brooks,  2  A. 
K.  Marsh.  339.  The  only  repairs  made  by  the  mortgagee,  without  the 
mortgagor's  consent,  which  will  be  allowed  to  the  mortgagor,  are  strictly 
necessary  repairs.  Beneficial  expenditures,  if  unnecessary,  will  not  be 
allowed  :  Quinn  v.  Brittain,  1  Hofi".  Ch.  353 ;  Hagthorp  v.  Hook,  1  Gill  & 
J.  270;  Lowndes  v.  Chisolm,  2  McCord  Ch.  455;  McConnel  v.  Holobush, 
11  111.  61 ;  Boston  Iron  Co.  v.  King,  2  Cush.  400;  Hidden  t?.  Jordan,  32 
Cal.  397.  Taxes  will  be  allowed:  Goodrich  v.  Friedersdorfi",  27  Ind.  308. 
W^ith  few  exceptions,  it  is  a  general  rule  in  Chancery  that  a  mortgagee  in 
possession  is  not  entitled  to  any  allowance  for  new  improvements  erected 
on  the  premises :  Dougherty  v.  McColgan,  6  Gill  &  J.  275.  See  Boston 
Iron  Co.  t'.  King,  ut  sup.;  Harper's  Appeal,  64  Penn.  St.  315.  Where  a 
mortgagee  insures,  without  contract,  and  the  loss  is  paid  him,  it  is  not  to 
be  deducted  from  his  charges  for  repairs :  White  v.  Brown,  2  Cush.  412 ; 
Garden  v.  Ingram,  23  L.  J.  Ch.  478.  On  the  other  hand,  as  the  mortgag6r 
is  not  bound  to  insure,  the  mortgagee  cannot  charge  him  with  premiums : 
Dobson  V.  Land,  8  Hare  216. 

A  mortgagee  by  taking  possession,  assumes  the  duty  of  treating  the  pro- 
perty as  a  provident  owner  would  treat  it :  Shaeffer  v.  Chambers,  2  Halst. 
Ch.  548.  If  it  be  a  farm,  for  instance,  he  is  not  at  liberty  to  let  it  lie  un- 
tilled,  because  the  house  on  it,  or  the  house  and  farm  together,  were  not 
rented,  but  must  keep  it  in  good  ordinary  repair,  and  is  bound  to  good  or- 
dinary husbandry  :  Shaeffer  v.  Chambers,  ut  sup.  And  he  will  be  charged 
with  the  rent  he  might  have  obtained  for  it,  although  by  cultivating  it 


^  270 


ADAMS  S    DOCTRINE    OF    EQUITY. 


In  taking  the  account  of  a  mortgagee  in  possession, 
where  the  rents  have  exceeded  the  interest  on  his  mort- 
gage, a  question  occurs,  whether  he  shall  be  charged  with 
interest  on  the  surplus  rents.  If  he  is  not  to  be  charged 
with  such  interest',  the  account  is  taken  by  ascertaining 
on  the  one  hand  th€  aggregate  amount  of  principal  and 
interest  down  to  the  period  of  redemption,  and  on  the 
other  hand  the  aggregate  amount  of  rent,  down  to  the 
same  period,  and  striking  a  balance  of  the  two  accounts. 
If  he  is  to  be  charged  with  interest,  the  account  is  taken 
by  making  rests  from  time  to  time,  and  striking  a  balance 
at  each  rest,  so  as  to  apply  the  surplus  rents  in  gradual 
reduction  of  the  principal  debt,  and  in  consequent  dimi- 
nution of  the  subsequent  interest.  The  effect  of  this 
course  is  equivalent  to  allowing  interest  throughout  on 
the  entire  principal,  and  charging  interest  on  the  surplus 
rents. 

In  order  to  authorize  the  rests,  an  express  direction  of 


himself  he  has  actually  sustained  a  loss  :  Sanders  v.  Wilson,  34  Verm.  321 ; 
and  see  Miller  v.  Lincoln,  6  Gray  556. 

So  a  mortgagee  in  possession  of  slaves  is  bound  to  exercise  reasonable 
diligence  in  keeping  them  engaged  in  useful  employments,  so  as  not  only 
to  pay  their  expenses,  but  also  to  obtain  a  reasonable  compensation  for 
their  labor :  Bennett  w.  Butterworth,  12  How.  U.  S.  367. 

So,  in  general,  a  mortgagee  of  personalty  in  possession,  after  condition 
broken,  is  responsible  for  ordinary  diligence,  and  liable  for  ordinary  ne- 
glect. 

If  the  property  is  destroyed  without  fault  of  his,  he  cannot  be  held  to 
account  for  it ;  but  he  is  accountable  for  the  net  profits  before  its  destruc- 
tion: Covell  V.  DolloflF,  31  Maine  104. 

How  the  account  of  the  rents  and  profits  is  to  be  taken,  see  Powell  v. 
Williams,  14  Ala.  476  ;  Shaeffer  v.  Chambers,  2  Halst.  Ch.  548. 

A  mortgagee  in  possession  is  liable  to  an  action  for  waste  :  Givens  v.  Mc- 
Calmont,  4  Watts  460.  He  cannot  be  dispossessed  by  the  holder  of  the 
legal  title.  Being  in  possession  he  is  entitled  to  retain  it  until  his  mort- 
gage is  satisfied:  Sahler  v.  Signer,  44  Barb.  (N.  Y.)  606. 


PERFECT  AND  IMPERFECT  MORTGAGES.    271 

the  Court  is  necessary^  (<5f)  and  the primd  facie  presumption 
is  against  allowing  them.  For  the  mortgagee  is  not  bound 
to  take  payments  by  instalments,  and  his  possession  is  in 
consequence  of  the  mortgagor's  default.  If,  however,  he 
take  possession  when  no  interest  is  in  arrears,  he  is  not 
compelled  to  do  so  by  the  mortgagor's  default,  and  rests 
will  be  decreed  against  him.  It  is  otherwise  if  interest  is 
in  *arrear  at  the  time ;  and  he  will  not  in  that  r-^-,  -.  q-. 
case  become  liable  to  account  with  rests  until 
both  principal  and  interest  have  been  discharged.  If  he 
continue  in  possession  after  that  time,  annual  rests  will 
be  decreed  for  the  subsequent  period.  (^) 

The  liability  of  a  mortgagee  in  possession  to  account  is 
confined  to  a  period  of  twenty  years,  unless  continued  by 
his  own  acknowledgment.  The  rule  formerly  was,  that  if 
a  mortgagee  were  in  possession  for  twenty  years,  without 
keeping  accounts  or  otherwise  dealing  with  the  property 
as  mortgagee,  a  presumption  arose  that  the  equity  was 
released.  And  by  the  present  law  it  is  expressly  de- 
clared that  the  mortgagor  out  of  possession  shall  not  be 
entitled  to  redeem,  except  within  twenty  years  after  the 
mortgagee  took  possession,  or  after  a  written  acknow- 
ledgment of  his  right,  signed  by  the  mortgagee,  has  been 
given  to  him  or  his  agent,  (c) 

The  remedy  of  the  mortgagee  by  taking  possession  is 
practically  very  inconvenient.  Yet  if  the  forfeiture  by 
non-payment  had  been  taken  away,  and  not  replaced  by 
any  substitute,  it  would  have  been  the  only  one  attainable 
under  his  security.     In  order  to  remedy  this  objection, 

(a)  Webber  v.  Hunt,  1  Mad.  13. 

(6)  Quarrell  v.  Beckford,  1  Mad.  269;  Wilson  v.  Metcalf,  1  Rus.  530; 
Wilson  V.  Cluer,  3  Bea.  130 ;  Horlock  ».  Smith,  I  Coll.  287. 

(c)  Hodle  V.  Ilealey,  G  Mad.  181 ;  Cholmondeley  v.  Clinton,  4  BI.  0.  S. 
1 ;  3  &  4  Wm.  4,  c.  27,  s.  28,  supra. 


272  ADAMS's    DOCTRINE    OF    EQUITY. 

the  mortgagee  is  allowed  after  forfeiture  to  file  a  bill 
praying  foreclosure  of  the  equity  to  redeem.  A  new  day 
for  payment  is  then  fixed  by  decree,  and  if  default  be 
made,  the  mortgagor's  right  is  destroyed.  The  fore- 
closure, however, '  may  be  opened  and  the  right  of  re- 
demption revived,  if  the  decree  appear  to  have  been  un- 
fairly obtained,  or  if  the  mortgagee  treat  the  loan  as  still 
continuing;  as,  for  example,  if  he  proceed  against  the 
mortgagor  on  bond  or  other  collateral  security.  If  he 
sell  the  estate,  and  thus  render  it  impossible  to  reopen 
the  foreclosure,  he  will  be  restrained  from  suing  on  the 
r*l  901  collateral  securities,  although  the  sale  *may  have 
been  bond  fide  made  for  less  than  the  amount 
due.(c?) 

The  effect  of  foreclosure  is  also  produced  by  the  dis- 
missal of  a  redemption  bill  on  default  in  payment,  for 
the  Court  will  not  again  interfere,  but  will  leave  the 
parties  to  their  rights  at  law. 

It  must  be  observed,  that  the  right  of  the  mortgagee 
on  such  a  bill  is  a  right  merely  to  foreclose  the  equity, 
and  does  not  extend  to  warrant  a  sale.  For  although  a 
sale  would  be  often  more  convenient  than  a  foreclosure, 
yet  it  is  not  stipulated  for  by  the  contract,  and  the  Court 
has  no  more  authority  to  sell  the  mortgaged  estate  for 
payment  of  the  debt,  than  to  sell  the  mortgagor's  other 
estates  for  the  same  purpose.  If;  however,  the  property 
mortgaged  be  a  right  of  presentation  to  a  church,  (e)  or 
a  dry  reversion,  incapable  of  producing  present  profit,  (/) 
the^mortgagee  in  entitled  to  a  sale,  is  respect  of  the  special 

(d)  Tooke  v.  Hartley,  2  B.  C.  C.  125 ;  Perry  v.  Barker,  8  Ves.  527 ;  13 
Ves.  198  ;  Lockhart  v.  Hardy,  9  Bea.  349. 

(e)  Mackensie  v.  Robinson,  3  Atk.  559. 
(/)  How  V.  Vigues,  15  Viner's  Abr.  475. 


PERFECT    AND    IMPERFECT    MORTGAGES.         273 

character  of  the  mortgaged  property,  and  its  incapacity  of 
constituting,  except  by  a  sale,  a  practical  security  for  the 
debt.  And  in  cases  where  stock  has  been  transferred  by 
way  of  mortgage,  the  mortgagee  is  entitled  by  the  custom 
of  business  to  sell  immediately  on  default,  without  the 
necessity  of  obtaining  a  decree.  (^)  In  those  cases  also 
where  there  is  a  special  supervening  jurisdiction,  and 
where  the  Court  does  not  act  in  respect  of  the  mortgage 
alone,  a  decree  for  sale  may  be  obtained.  If,  for  example, 
the  mortgagor  be  dead,  there  is  an  independent  jurisdiction 
to  administer  his  assets,  and  therefore  if  the  personalty  be 
insufficient,  the  mortgaged  estate  may  be  sold  by  consent 
of  the  mortgagee,  and  the  produce  applied,  first  in  dis- 
charge of  the  mortgage,  and  then  in  payment  of  the  other 
debts,  (^)  or  if  the  estate  has  *been  vested  in  an  j-*io-|-i 
infant,  a  sale  may  be  directed  as  indispensable  for 
his  benefit,  lest  the  estate  should  be  foreclosed  and  lost.(z) 
In  Ireland,  and  some  of  the  American  courts,  a  difierent 
rule  prevails,  and  the  mortgagee  may  in  all  cases  require 
a  sale.(^)^     If  an  express  power  of  sale  is  given  by  the 

ig)  Tucker  v.  Wilson,  1  P.  W.  261. 

ih)  Daniel  v.  Skipwith,  2  B.  C.  C.  155. 

( j)  Mondey  v.  Mondey,  1  Ves.  &  B.  223 ;  Brookfield  v.  Bradley,  Jac. 
634 ;  Davis  v.  Dowrding,  2  K.  245. 

(A:)  2  Story  on  Eq.  Jur.  s.  1025 ;  [Brinkerhoff ».  Thallhimer,  2  John.  Ch. 
486  5  Mills  V.  Dennis,  3  Id.  369.] 

^  In  England,  by  Stat.  15  &  16  Vict.  c.  86,  s.  48,  the  Court  of  Chancery 
is  now  empowered  in  a  foreclosure  suit,  to  direct  a  sale  of  the  property  at 
the  request  of  either  party;  and  recent  statutes  have  regulated  the  mort- 
gagee's remedy  by  powers  of  sale.  See  Williams  on  Real  Property  396. 
In  some  of  the  United  States  the  remedy  in  equity  obtains :  4  Kent's  Com. 
181 ;  in  others  the  proceedings  are  regulated  by  statute :  Williams  on  Real 
Property  395,  note. 

In  many  of  the  states  the  ancient  practice  of  procuring  a  strict  fore- 
closure is  not  adopted:  Nelson  v.  Carrington,  4  Munf.  332;  Rodgers  »_ 
Jones,  1  McCord's  Ch.  221 ;  Downing  r.  Palmateer,  1  Monr.  66;  Pannelj 
18 


274  ADAMS's    DOCTRINE    OF    EQUITY. 

mortgage,  such  a  power  forms  an  additional  remedy  for  the 
mortgagee,  and  does  not  interfere  with  his  right  to  fore- 
close.^ 

If  the  mortgagor  become  bankrupt,  the  position  of  the 
mortgagee  as  to  foreclosure  is  changed.  He  loses  the 
right,  which  he  previously  had,  of  enforcing  payment  as 
a  general  creditor,  and  retaining  in  the  meantime  his 
power  to  foreclose.  For  the  principle  of  the  Bankrupt 
Law,  which  aims  at  distributing  a  debtor's  property  among 

».  Farmers'  Bank,  7  Har.  &  J.  202 ;  Humes  v.  Shelly,  1  Tenn.  79 ;  Hord  v. 
James,  Id.  201 ;  David  v.  Grahame,  2  Har.  &  G.  94.  See  Henderson  v. 
Lowry,  5  Yerg.  240 ;  Smith  v.  Bailey,  1  Shaw  (Verm.)  163 ;  Lockwood 
V.  Lockwood,  1  Day  295 ;  Baylies  v.  Bussey,  5  Greenleaf  153  ;  Gilman 
V.  Hidden,  5  N.  H.  31 ;  Erskine  v.  Townsend,  2  Mass.  493 ;  5  Ham. 
554. 

The  practice  in  the  New  England  states  seems  to  be  similar  to  that  of 
the  English  Courts :  Mix  v.  Hotchkiss,  14  Conn.  32  5  but  see  Gibson  v.  Bailey, 
9  N.  H.  168 ;  and,  in  North  Carolina,  see  Spiller  v.  Spiller,  1  Hayw.  482 ; 
see,  in  Maine,  Chamberlain  v.  Gardner,  38  Maine  548.  In  Pennsylvania 
a  mortgage  may  be  foreclosed  by  scire  facias ;  so  in  Illinois  and  in  Mis- 
souri by  petition  and  summons.  It  was  held  in  Riley  v.  McCord,  24 
Missouri  265,  that  a  mortgagee  had  still  a  right  to  come  into  equity,  not- 
withstanding the  remedy  provided  by  statute ;  and  see  Hall  v.  Hall,  46 
N.H.  240;  McCumber  v.  Gilman,  13  111.  542.  In  Pennsylvania,  however, 
the  Courts  have  no  equitable  jurisdiction  to  compel  the  sale  of  the  mort- 
gaged premises  at  the  suit  of  the  mortgagee ;  the  remedy  is  by  scire  facias 
under  the  statute  :  Ashhurst  v.  The  Montour  Iron  Co.,  35  Penn.  St.  30 ; 
Bradley  v.  The  Chester  Valley  R.  R.  Co.,  36  Id.  141. 

1  Carradine  v.  O'Connor,  21  Ala.  573  ;  Walton  v.  Cody,  1  Wis.  420.  A 
power  to  mortgage  includes  a  power  to  execute  a  mortgage  containing  a 
power  to  the  mortgagee  to  sell  the  premises  in  default  of  payment,  it  being 
one  of  the  usual  and  lawful  remedies  given  to  a  mortgagee,  known  to  the 
law  and- regulated  by  statute:  Wilson  v.  Troup,  7  John.  Ch.  25;  2  Cowen 
195,  s.  c.  See  Russell  v.  Plaice,  18  Bea.  21.  And  a  power  to  sell  in  a 
mortgage  deed,  on  default  of  payment,  is  a  power  coupled  with  an  interest, 
and  does  not  die  with  the  mortgagor :  Bergen  ».  Bennett,  1  Caines  Cas. 
in  Eq.  1 ;  Varnum  r.  Meserve,  8  Allen  (Mass.)  158.  A  sale  under  a  power  in 
a  mortgage  must  pursue  strictly,  as  to  time  and  place,  the  stipulation  in  the 
mortgage  :  Hall  v.  Towne,  45  111.  493. 


PERFECT  AND  IMPERFECT  MORTGAGES.    275 

all  his  creditors,  will  not  permit  a  creditor  to  keep  back 
.part  of  that  property,  and  at  the  same  time  to  share  in 
the  distribution  of  the  rest.  The  mortgagee  therefore 
must  elect  between  two  courses.  He  must  either  relin- 
quish his  security  and  prove  for  the  whole  debt ;  or  he 
must  realize  his  security,  and  afterwards  prove  for  so 
much  of  the  debt  as  the  produce  is  insufficient  to  discharge. 
And  in  order  to  effectuate  this  latter  course,  it  is  directed 
that  the  commissioner  acting  under  the  fiat,  on  being 
satisfied  of  the  creditor's  title  as  mortgagee,  shall  take  an 
account  of  the  moneys  due ;  shall  cause  the  mortgaged 
premises  to  be  sold,  and  the  produce  to  be  applied,  first  in 
payment  of  the  expenses,  and  then  in  satisfaction  of  the 
claim ;  and  if  the  moneys  produced  shall  be  insufficient  to 
satisfy  it,  shall  admit  the  mortgagee  as  a  creditor  for  the 
deficiency,  and  to  receive  dividends  thereon.  (/)^ 

In  addition  to  regular    or   perfect   mortgages,  which 
*convey  the  legal  estate  to  the  mortgagee,  and    r-^^  oq-i 
specify  a  day  of  forfeiture  at  law,  there  are  other 
securities  of  an  analogous  character,  but  defective  in  one 
or  both  of  these  respects. 

These  imperfect  securities  are  seven  in  number :  viz., 
1.  Mortgages  of  a  trust  or  equity  of  redemption,  and 

{I)  General  Order  in  Bankruptcy  of  8th  March,  1794  ;  1  Mont.  &  Ayrton'a 
Bankruptcy  243  ;  Greenwood  r.  Taylor,  1  R.  &  M.  185 ;  Mason  v.  Bogg,  2 
M.  &  C.  443  ;  Davis  v.  Dowding,  2  K.  245. 

^  Where  a  mortgagor  becomes  bankrupt,  and  a  deficiency  of  his  property 
is  apprehended,  and  a  prior  mortgagee  obtains  the  appointment  of  a  re- 
ceiver to  collect  the  rents,  such  mortgagee  acquires  a  lien  upon  the  rents, 
and,  upon  motion,  they  maybe  applied  to  the  mortgage  debt:  Post*. 
Dorr,  4  Edw.  Ch.  412.  See,  as  to  the  appointment  of  a  receiver,  Cortleyeu 
r.  Hathaway,  3  Stockt.  39 ;  Finch  v.  Houghton,  19  Wis.  149 ;  Hyman  v. 
Kelly,  1  Nev.  179.  A  receiver  cannot  be  appointed  at  the  commencement 
of  the  foreclosure  suit:  Ibid. 


276  ADAMS's    DOCTRINE    OF    EQUITY. 

equitable  mortgages  by  imperfect  conveyance,  or  by  con- 
tract to  convey ;  2.  Equitable  mortgages  by  deposit  of 
title  deeds  unaccompanied  by  a  written  contract ;  3.  Welsh 
mortgages ;  4.  Trust  deeds  in  the  nature  of  mortgage ;  5. 
The  equitable  lien  of  a  vendor  or  purchaser  of  real  estate ; 
6.  Equitable  J*?. /a.  and  elegit;  and  7.  Judgment  charges 
under  1  and  2  Vict.  c.  110,  s.  13  and  14. 

The  first  class  of  imperfect  mortgages  are,  mortgages 
of  a  trust  or  equity  of  redemption.  In  a  mortgage  of 
this  kind  the  legal  estate  is  ex  concessis  outstanding  in  the 
trustee  or  prior  encumbrancer,  and  cannot  be  transferred 
to  the  mortgagee.  He  is  therefore  disabled  from  obtain- 
ing possession  at  law,  and  is  entitled  in  consequence  of 
that  disability,  to  have  a  receiver  appointed  in  equity,  by 
whom  the  rents  of  the  estate  may  be  received,  and  applied 
in  satisfaction  of  his  mortgage.  A  receiver,  however,  will 
not  be  appointed,  if  a  prior  legal  encumbrancer  is  in  pos- 
session, unless  the  applicant  will  pay  off  his  demand.  If 
the  prior  encumbrancer  be  not  in  possession,  the  appoint- 
ment may  be  made,  without  prejudice  to  his  right  of  ap- 
plying for  the  possession.  A  legal  mortgagee  cannot  have 
a  receiver,  but  must  take  possession  under  his  legal 
title,  (m) 

It  should  be  observed  that  where  an  equity  of  redemp- 
tion is  the  subject  of  mortgage,  the  mortgagor  is  bound  to 
disclose  the  prior  mortgage ;  and  that  if  he  conceals  it  and 
represents  the  land  as  unencumbered,  he  is  liable  by  statute 
to  forfeit  his  equity,  and  to  be  ipso  facto  foreclosed  in  favor 
of  the  second  mortgagee,  (y^)  By  the  same  act  it  is 
r*12S1  ^^'^^^^^^  t^^^  i^  ^  person  bound  by  judgment, 
statute  or  recognisance,  borrow  money  on  mort- 

[m)  Berney  v.  Sewell,  I  Jac.  &  W.  627 ;  Brookes  v.  Greathed,  Id.  176. 
[n)  4  &  5  Wm.  3,  c.  16  ;  StaflFord  v.  Selby,  2  Vein.  589. 


PERFECT  AND  IMPERFECT  MORTGAGES.    277 

gage,  without  giving  notice  thereof  in  writing,  he  must 
discharge  the  judgment,  statute,  or  recognisance,  within 
six  months  after  requisition  by  the  mortgagee,  and  that  in 
default  in  so  doing,  he  shall  be  ipso  facto  foreclosed. 

Mortgages  of  the  kind  just  considered  may  be  properly 
called  "mortgages  of  an  equity;"  there  are  also  other 
imperfect  mortgages,  which  may  be  termed  "  equitable 
mortgages,"  consisting  of  mortgages  by  imperfect  convey- 
ances, or  by  an  uncompleted  contract  to  convey.  Mort>- 
gages  of  this  latter  class  entitle  the  mortgagee  to  claim 
specific  performance  and  the  execution  of  a  legal  mort- 
gage. In  the  meantime,  they  stand  on  the  same  footing 
as  mortgages  of  an  equity,  and  entitle  the  mortgagee  to  a 
receiver  of  the  rents  .^ 

The  second  class  of  imperfect  mortgages  are  equitable 
mortgages  by  deposit  of-  title  deeds,  unaccompanied  by  a 
written  contract.^ 

^  A  Court  of  equity  will  often  pronounce  that  to  be  an  equitable  mort- 
gage, which  at  law  would  be  considered  a  conditional  sale,  and  if  a  con- 
veyance resolves  itself  into  a  security  for  the  performance  or  non-perform- 
ance of  any  act,  it  is  a  mortgage,  whatever  be  its  form :  Flagg  v.  Mann,  2 
Sum.  486.  It  has  been  held  in  several  of  the  United  States,  that  any 
agreement  in  writing  to  give  a  mortgage,  or  imperfect  attemjffe  to  create  a 
mortgage,  or  to  appropriate  specific  property  in  discharge  of  a  particular 
debt,  will  be  treated  in  equity  as  a  mortgage,  or  a  specific  lien,  which  will 
have  precedence  of  subsequent  judgment  creditors:  Read  v.  Simons,  2 
Dessaus.  552  5  Welsh  v.  Usher,  2  Hill  Eq.  167 ;  Dow  ».  Ker,  1  Spear  Eq. 
414 ;  In  the  matter  of  Ilowe,  1  Paige  125 ;  Bank  of  Muskingum  v.  Car- 
penter, 7  Ohio  21  ;  Lake  v.  Doud,  10  Ohio  415.  See  Brown  v.  Nickle,  6 
Penn.  St.  390 ;  Locke  v.  Palmer,  26  Ala.  312 ;  note  to  Russel  v.  Russel,  1 
Lead.  Cas.  Eq.  541  ;  Racouillat  v.  Sansevain,  32  Cal.  376.  This  is  a  ques- 
tion, however,  which  depends  to  some  extent  upon  the  policy  of  the  re- 
cording acts. 

There  can  be  no  mortgage  of  property  not  yet  in  existence,  at  law,  and 
in  equity  an  instrument  of  such  a  character  will  be  regarded  as  a  mere 
contract,  giving  no  right  over  the  property  when  it  is  acquired,  and  so  far 
as  it  entitles  the  mortgagee  to  specific  performance,  is  subordinate  to  inter- 
vening liens :  Otis  v.  Sill,  8  Barb.  S.  C.  102. 

*  Equitable  mortgages  by  deposit  have  been  sustained  in  Rockwell  v. 


278  ADAMS's    DOCTRINE    OF    EQUITY. 

The  primd  facie  effect  of  such  deposit  is,  that,  until 
payment,  the  debtor  cannot  get  back  his  title  deeds,  and 
therefore  cannot  conveniently  deal  with  the  estate;  and 
if  the  right  conferred  on  the  creditor  had  stopped  here,  it 
would  not  have  been  in  the  nature  of  a  mortgage  at  all, 
but  would  have  been  very  similar  to  a  solicitor's  lien,  viz., 
a  right  to  hold  the  deeds  so  as  to  enforce  payment  by  em- 
barrassing the  debtor,  but  unaccompanied  by  any  charge 
on  the  estate.  The  attempt  to  carry  the  security  beyond 
this  limit,  and  to  make  such  deposits  a  charge  on  the 
estate  was  seriously  impeded  by  the  enactment  of  the 
Statute  of  Frauds,  that  no  interest  in  land  shall  be  created 
otherwise  than  by  writing;  but  it  has  been  held  that  the 
fact  of  the  deeds  being  delivered  to  the  creditor,  raises  an 
implication  of  law,  not  only  that  they  were  to  operate  as 
a  security  for  the  debt,  but  that  such  security  was  to  be 
r*124-l  effectuated  by  a  mortgage,  (o)  *The  conclusion, 
however,  (^  this  latter  point  seems  unsatisfac- 
tory; for  although  there  may  be  a  sufficient  ground  to 
presume  that  a  security  was  meant,  yet  the  deposit  might 
effectuate  that  object  by  embarrassing  the  debtor  without 
necessarily  charging  the  land.  The  doctrine  was  several 
times  commented  on  by  Lord  Eldon,  who  admitted  that 

(o)  Russel  V.  Russel,  1  B.  0.  C.  269  ;  Ex  parte  Whitbread,  19  Ves.  209 ; 
Ex  parte  Hooper,  1  Meriv.  7  ;  Parker  v.  Housefield,  2  M.  &  K,  419. 

Hobby,  2  Sandf.  Ch.  9  ;  AVilliaras  v.  Stratton,  10  Smed.  &  M.  418  ;  and  see 
Welsh  ».  Usher,  2  Hill  Eq.  170 ;  Jarvis  v.  Butcher,  16  Wis.  307.  In  Penn- 
sylvania,, it  has  been  decided  that  an  equitable  mortgage  by  delivery  of 
title  deeds,  or  otherwise  by  parol,  is  not  valid  :  Shitz  v.  Dieffenbach,  3 
Penn.  St.  233  ;  Bowers  v.  Oyster,  3  Penna.  R.  240;  Thomas's  Appeal,  30 
Penn.  St.  378  ;  see  also  as  to  Kentucky  :  Vanmeter  v.  McFaddin,  B.  Monr. 
435.  See  Edwards  Ex'rs.  v.  Trumbull,  50  Penn.  St.  509.  So  also,  in 
Ohio :  Probasco  v.  Johnson,  2  Disney  96. 

It  seems  such  a  mortgage  would  not  be  valid  in  Vermont,  though  the 
point  was  not  decided :  Bicknell  v.  Bicknell,  31  Verm.  498. 


PERFECT    AND    IMPERFECT    MORTGAGES.         279 

it  was  established  by  precedent,  but  said  that  it  ought 
never  to  have  been  so  established. 

In  conformity  with  this  doctrine  a  mere  delivery  of 
deeds,  by  way  of  security,  unaccompanied  by  any  written 
contract,  will  constitute  in  equity  a  charge  on  the  land. 
And  by  parity  of  reasoning,  the  security  may  be  extended 
to  future  advances,  if  they  are  made  under  a  parol  agree- 
ment to  that  effect,  although  in  the  case  of  an  ordinary 
mortgage,  or  of  a  contract  for  conveyance  as  distinct  from 
deposit,  a  writing  would  be  necessary  under  the  Statute 
of  Frauds. (^9) 

Mortgages  of  this  kind  are  not  unusual,- especially  in 
the  case  of  persons  in  trade  where  loans  are  required  for 
a  short  period,  and  the  parties  are  desirous  of  saving  time 
and  expense. 

Their  essentials  are,  as  we  have  already  seen,  that  the 
deeds  be  delivered  to  the  creditor,  and  that  the  delivery 
be  by  way  of  pledge,  and  not  diverso  intuitu}  A  delivery 
to  a  third  person  on  behalf  of  the  creditor  would  probably 
be  sufficient  if  the  intention  were  proved.  But  if  the 
deeds  are  retained  by  the  mortgagor  a  parol  agreement 
to  deposit  them  is  ineffectual.  (§')  If  a  portion  only  of 
the  deeds  be  delivered,  it  appears  to  be  sufficient,  provided 
the  delivery  be  with  the  intention  to  create  a  security. 

But  if  part  be  delivered  to  one  creditor,  and  part  to 
another,  there  may  be  much  difficulty  in  considering 
either  of  them  as  an  equitable  mortgagee,  or  as  entitled 

{p)  Ex  parte  Whitbread,  19  Ves.  209  ;  Ex  parte  Hooper,  1  Meriv.  7. 
(g)  Ex  parte  Coming,  9  Ves.  115;  Ex  parte  Whitbread,  19  Ves.  209; 
Ex  parte  Coombe,  4  Madd.  249. 

^  The  mere  fact  that  the  title  deeds  are  in  a  bond-creditor's  possession, 
is  not  sufficient  evidence  by  itself  of  an  equitable  mortgage  in  his  favor : 
Chapman  v.  Chapman,  13  Beav.  308. 


280  ADAMs's    DOCTRINE    OF    EQUITY. 

to  more  than  his  right  of  detainer,  (r)^  If  the  delivery 
r*1251  ^^  ^^^  strictly  by  way  of  ^pledge,  but  in  order  to 
the  preparation  of  a  regular  mortgage,  there 
seems  to  be  additional  difficulty  in  sustaining  it  as  an 
equitable  mortgage.  For  the  implication  arising  out  of 
the  mere  deposit,  that  such  deposit  itself  was  meant  as  a 
charge,  is  expressly  negatived  by  the  proved  intent.  And 
if  that  intent  is  specifically  enforced  by  directing  a  mort- 
gage to  be  made,  the  direction  will  be  based,  not  on  an 
implication  of  law,  but  on  express  parol  evidence,  ad- 
mitted in  contravention  of  the  Statute  of  Frauds.  The 
authorities,  however,  are  in  favor  of  the  mortgagee's 
claim,  (s) 

The  effect  of  a  mortgage  by  deposit  is  that  the  mort- 
gagee has  a^n  equitable  charge  on  the  land.  He  is  not 
invested  with  the  legal  ownership;  and  for  this  reason  he 
is  entitled,  like  the  mortgagee  of  an  equity,  to  have  a 
receiver  appointed  of  the  rents.  His  mortgage  specifies 
no  day  of  payment,  and  a  doubt  therefore  has  existed 
whether  his  proper  remedy  is  by  foreclosure  or  by  a  de- 
cree for  sale.     The  decisions  on  this  point  are  not  uniform, 

(r)  Ex  parte  Wetherell,  11  Ves.  401 ;  Ex  parte  Pearsa,  Buck  525;  Ex 
parte  Chippendale,  2  M.  &  A.  299. 

(*)  Norris  v.  Wilkinson,  12  Ves.  192 ;  Ex  parte  Bruce,  1  Rose  374 ; 
Hockley  v.  Bantock,  1  Russ.  141 ;  Keys  v.  Williams,  3  Y.  &  C.  55. 

^  In  Roberts  v.  Croft,  24  Beav.  223,  the  equitable  mortgagor  deposited 
with  one  creditor  all  the  deeds  except  the  last  conveyance  to  himself,  and 
this  he  subsequently  placed  with  another  person.  It  was  held  that  the 
first  creditor  was  entitled  to  priority,  on  the  ground  that  title  papers  de- 
posited by  way  of  mortgage  need  not  necessarily  show  the  mortgagor's 
title.  In  Daw  v,  Terrell,  33  Beav.  218,  the  deposit  of  deeds  of  two  lots, 
and  an  order  on  the  mortgagor's  bankers  for  the  deeds  of  a  third,  were 
held  to  constitute  a  good  equitable  mortgage  as  to  the  whole.  The  deeds  of 
the  third  property  had  been  deposited  with  the  bankers  by  way  of  mort- 
gage, and,  on  payment,  had  been  returned  to  the  mortgagor. 


PERFECT  AND  IMPERFECT  MORTGAGES.    281 

but  their  result  appears  to  be  that  the  implied  contract  is 
one  for  a  legal  mortgage,  and  therefore  carries  with  it  all 
the  rights  which  a  legal  mortgage  would  confer,  including 
the  right  of  foreclosure.  Whether  he  is  bound  to  abide 
by  that  right,  or  may  claim  in  the  alternative  a  sale  of 
the  estate,  seems  to  be  still  in  doubt.  (^)^ 

The  third  and  fourth  classes  of  imperfect  mortgages 
are  Welsh  mortgages,  and  trusts  deeds  in  the  nature  of 
mortgages. 

A  Welsh  mortgage  is  a  conveyance  of  an  estate  re- 
deemable at  any  time  on  payment  of  principal  and  inter- 
est, and  its  chief  imperfection  is  the  want  of  a  specified 
day  of  forfeiture.  The  consequence  of  this  want  is  that 
the  mortgagee's  remedy  is  confined  to  perception  of  the 
rents,  and  *that  he  is  not  entitled  to  foreclosure  r-^^-,  q^,-. 
or  sale,  nor  will  his  liability  to  account  be  deter- 
mined by  the  lapse  of  time,  unless  he  has  continued  in 
possession  for  twenty  years  after  the  debt  was  fully  paid 
and  satisfied,  (w)^ 

Trust  deeds  in  the  nature  of  mortgage  are  mere  con- 
veyances to  the  creditor,  on  trust  for  the  debtor  until  de- 
fault ;  and  after  default,  on  trust  to  sell  and  to  retain  the 

[t)  Pain  V.  Smith,  2  M.  &  K.  417  ;  Parker  ».  Housefield,  2  M.  &K.  419  ; 
Brocklehurst  p.  Jessop,  7  Sim.  438:  Moores  v.  Choat,  8  Sim.  508,  515, 
523  ;  Price  v.  Carver,  3  M.  &  C.  157,  161  ;  Lister  v.  Turner,  5  Hare  281. 

(m)  Yates  r.  Hambley,  2  Atk.  360 ;  Fenwick  v.  Reed,  1  Meriv.  114 ; 
Teulon  v.  Curtis,  Younge  610  ;  Balfe  v.  Lord,  1  Conn.  &  L.  519. 

^  Sale  and  not  foreclosure  was  held  to  be  the  remedy  in  Tuckley  ». 
Thompson,  1  Johns.  &  H.  126  ;  but  Redmayne  v.  Forster,  L.  R.  2  Eq.  467, 
is  the  other  way. 

'  In  Louisiana,  the  antichresis,  •which  resembles  the  Welsh  mortgage, 
in  that  the  creditor  is  entitled  to  take  the  rents  and  profits  in  discharge  of 
his  debt,  but  differs,  in  his  being  entitled  to  a  decree  of  sale,  is  the  form  of 
pledge  of  real  estate  authorized  by  the  Civil  Code.  See  Livingston  v.  Story, 
11  Peters  S.  C.  351. 


282  ADAMS'S    DOCTRINE    OF    EQUITY. 

debt  out  of  the  proceeds.  The  imperfection  of  these 
securities,  like  that  of  Welsh  mortgages,  consists  in  the 
want  of  any  day  of  forfeiture,  and  in  the  consequent 
absence  of  a  right  to  foreclosure.  The  estate  never 
vests  absolutely  in  the  creditor,  and  he  is  placed  rather 
in  the  position  of  a  trustee,  though  to  some  extent  for 
his  own  benefit,  than  in  that  of  an  independent  mort- 
gagee, (t;)  / 

The  inconvenience  resulting  from  the  want  of  ability 
to  foreclose,  both  in  the  case  of  Welsh  mortgages,  and 
in  that  of  trust  deeds,  is  very  great ;  and  such  securities 
are  of  comparatively  unfrequent  occurrence. 

The  fifth  class  of  imperfect  mortgages  is  the  equitable 
lien  of  a  vendor  or  purchaser  of  real  estate  ^ 

The  term  lien,  when  accurately  used,  signifies  a  right 
to  retain  a  personal  chattel,  until  a  debt  due  the  person 
retaining  is  satisfied ;  and  it  exists  at  common  law  in- 
dependently of  liens  by  agreement  or  usage,  in  three 
cases,  viz.,  1.  Where  the  person  claiming  the  lien  has, 
by  his  labor  or  expense,  improved  or  altered  the  chattel; 
2.  Where  he  is  bound  by  law  to  receive  the  chattel  or  to 
perform  the  service  in  respect  of  which  the  lien  is  claimed ; 
and  3.  Where  his  claim  is  for  salvage,  as  on  a  rescue  of 
goods  from  perils  of  the  sea,  or  from  capture  by  an 
enemy. 

The  foundation  of  this  right  is  the  actual  possession, 

and  therefore,  if  the  possession  be  abandoned,  the  lien 

is  gone ;  and  if  there  be  any  agreement  to  postpone  the 

r*1271  ^^^^^  ^^  payment,  *the  same  eff*ect  follows  ;  for  it 

cannot  be  supposed  that  the  creditor  was  intend- 

(»)  Ex  parte  Pettit,  2  Gl.  &  J.  47  ;  Sampson  v.  Pattison,  1  Hare  533. 

*  This  equitable  lien  gives  the  vendor,  at  least  at  law,  no  right  to  detain 
the  title  deeds :  Goode  v.  Burton,  1  Exch.  189. 


PERFECT    ANI>    IMPERFECT    MORTGAGES.         283 

ed  to  detain  the  chattel  during  the  whole  period  of  post- 
ponement, [tv)  There  is  also  a  right  at  law  in  the  nature 
of  lien,  entitling  the  vendor  af  a  chattel  who  has  not  sold 
on  credit,  and  has  not  actually  or  constructively  delivered 
it  to  a  purchaser,  to  retain  it  in  his  possession  until  the 
whole  price  is  paid,^  notwithstanding  that  by  payment  of 
a  portion,  the  right  of  property  may  haA^e  passed  to  the 
purchaser.  The  right,  however,  seems  to  be  merely  a 
right  of  detention,  and  not  a  right  to  rescind  the  contract, 
or  to  make  up  the  deficiency  by  a  resale ;  and  when  the 
chattel  has  been  delivered,  the  right  is  at  an  end.(:r) 

The  equitable  lien  on  a  sale  of  realty  is  very  different 
from  a  lien  at  law ;  for  it  operates  after  the  possession 
has  been  changed,  and  is  available  by  way  of  charge, 
instead  of  detainer. 

The  distinction  may,  perhaps,  be  traced  to  the  same 
principle  which  prevails  in  regard  to  specific  performance ; 
viz.,  that  where  the  possession  of  a  chattel  has  been 
parted  with,  the  Courts  of  common  law  cannot  compel 
its  restoration,  but  can  only  give  damages  for  its  deten- 
tion, which  could  be  equally  well  obtained  in  an  action 
for  its  price.  A  right  of  lien,  therefore,  when  the  posses- 
sion has  been  parted  with,  would  be  a  nullity  at  law ;  and 
as  damages  area  sufficient  remedy  for  detention  of  chattels, 
there  is  no  ground  for  equitable  interference.  But,  on 
the  other  hand,  where  real  estate  is  concerned,  a  specific 
decree  is  required,  and  will  be  made. 

[w)  Smith's  Merc.  Law.  510,  518 ;  Jarm.  Byth.  3-13. 
[x)  Ibid,  436-9,  457-63,  500-9. 

^  Or,  if  the  sale  is  on  credit,  to  exercise  the  well  known  right  of  stoppage 
in  transitu.  And  the  vendor  may  come  into  a  Court  of  Equity,  and  ob- 
tain its  aid  to  enforce  this  lien  by  an  injunction  :  Schotsmana  v.  The  Lau- 
cashire  and  Yorkshire  R.  R.  Co.,  L.  R.  2  Chan.  Ap.  332. 


284  ADAMS's    DOCTRINE    OF    EQUITY. 

Whatever  be  the  origin  of  the  distinction,  its  existence 
is  clear.  And  it  is  an  established  principle  of  equity, 
that  where  a  conveyance  is  made  prematurely  before  pay- 
ment of  the  price,  the  money  is  a  charge  on  the  estate  in 
the  hands  of  the  'vendee ;  and  where  the  money  is  paid 
prematurely  *before  conveyance,  it  is,  in  like 
^  -^  manner,  a  charge  on  the  estate  in  the  hands  of 
the  vendor,  (y)^ 

{y)  Mackreth  v.  Symmons,  15  Ves.  329.  [See  Rose  v.  Watson,  10  House 
of  Lords  Cas.  672.] 

^  The  subject  of  the  equitable  lien  of  the  vendor  for  unpaid  purchase- 
money  will  be  found  discussed  in  the  notes  to  Mackreath  v.  Symmons,  1 
Lead.  Cas.  Eq.  235.  "  The  true  nature  of  this  claim  appears  to  be  this  : 
It  had  its  origin  in  a  country  where  lands  were  not  liable,  both  during 
and  after  the  life  of  the  debtor  for  all  personal  obligations,  indiscrimi- 
nately, includirig  debts  by  simple  contract ;  and  it  seems  to  be  an  original 
and  natural  equity,  that  the  creditor  whose  debt  was  the  consideration  of 
the  land,  should  by  virtue  of  that  consideration  be  allowed  to  charge  the 
land  upon  failure  of  personal  assets.  It  is  not  a  lien  until  a  bill  has  been 
filed  to  assert  it ;  before  that  is  done  it  is  a  mere  equity  or  capacity  to  ac- 
quire a  lien,  and  to  have  satisfaction  of  it.  When  a  bill  is  filed  it  becomes 
a  specific  lien:"  1  Lead.  Cas.  Eq.  373.  The  states  in  the  Union  may,  as 
to  this  subject,  be  divided  into  five  classes  : 

First,  those  in  which  the  lien  is  recognised  by  judicial  decision  :  such 
are  2^ew  York — Staflford  v.  Van  Rensselaer,  9  Cowen  316 ;  Warren  v.  Fenn, 
28  Barb.  335  ;  New  Jersey— VanioTen  ».  Todd,  2  Green  Ch.  397 ;  Herbert 
V.  Scofield,  1  Stockt.  492 ;  Dudley  v.  Matlack,  1  McCart.  252 ;  Indiana— 
Deibler  ».  Barwick,  4  Blackf.  339  ;  McCarty  v.  Pruet,  4  Ind.  226  ;  Cox  v. 
Wood,  20  Id.  54;  Ohio — Williams  v.  Roberts,  5  Ohio  35;  Mississippi — 
Stewart  et  al.  v.  Ives  et  al.,  1  Sm.  &  M.  197 ;  Trotter  v.  Irwin,  27  Miss. 
772 ;  Littlejohn  v.  Gordon,  32  Id.  235  ;  Missouri — Marsh  v.  Turner,  4  Mo. 
253  ;  Bledsoe  v.  Games,  30  Id.  448  ;  Illinois — Dyer  v.  Martin,  4  Scam.  148 ; 
Trustees  ».  Wright,  11  111.  603;  Mart/land — Moreton  v.  Harrison,  1  Bland. 
491 ;  Carr  ».  Hobbs,  11  Md.  285  ;  Bratt  v.  Bratt,  21  Id.  578  ;  Minnesota— 
Selby  V.  Stanley,  4  Minn.  65 ;  Tennessee — Eskridge  v.  McClure,  2  Yerg. 
84 ;  Brown  v.  Vanlier,  7  Humph.  239  ;  Alabama — Hall's  Ex'rs.  v.  Click,  5 
Ala.  363  ;  Burns  v.  Taylor,  23  Id.  255  ;  California — Truebody  v.  Jacobson, 
2  CaL  269  ;  Williams  v.  Young,  17  Id.  403  ;  Burt  v.  Wilson,  28  Id.  632  ; 
Arkansas-~Fjng\ish  v.  Russell,  Hemp.  35  ;  Georgia — Mounce  v.  Byars,  16 
Georgia  469 ;  Chance  v.  McWhorter,26  Id.  315 ;  Florida — Woods  v.  Bailey, 


PERFECT  AND  IMPERFECT  MORTGAGES.    285 

The  lien  thus  attaching  on  the  estate  is  obviously  use- 
less by  way  of  detainer,  and  can  only  be  available  by  way 

3  Flor.  41 ;  loica — Pierson  v.  David,  1  Iowa  23  ;  Michigan — Sears  v.  Smith, 
2  Mich.  243  ;  Converse  v.  Blumrich,  14  Id.  124 ;  Texas — Pinchain  v.  Col- 
lard,  13  Texas  333  ;  Glasscock  v.  Glasscock,  17  Id.  480. 

Second.  Those  states  in  which  the  lien  is  expressly  recognised  and  main- 
tained by  statute:  Maryland — General  Laws,  Art.  16,  §  130 •,  loica — Re- 
vised Laws  of  1860,  page  653. 

Third.  Those  in  which  the  lien  is  abolished  or  confined  within  narrow 
limits  by  statute :  Virginia — ^where  the  vendor's  lien  is  abolished  unless 
expressly  reserved  in  the  conveyance  :  2  Mat.  Dig.  397 ;  Yancey  v.  Mauck, 
15  Gratt.  J^OO  ;  though  it  formerly  existed  :  Tompkins  v.  Mitchell,  2  Rand. 
428  ;  Kyles  v.  Tait,  6  Gratt.  44  ;  Kentucky — where  there  is  a  statute  to  the 
same  eflFect :  Digest,  vol.  ii,  230 ;  Gritton  v.  McDonald,  3  Mete.  252 ;  Ver- 
mojit — where  the  Statute  of  1851  abolishes  the  lien  entirely. 

Fourth.  Those  states  in  which  the  lien  has  never  been  recognised  by 
the  courts  :  Pennsylvania — KaufiFelt  v.  Bower,  7  S.  &  R,  64 ;  Hepburn  v. 
Snyder,  3  Penn.  St.  72 ;  Zentmyer  v.  Mittower,  5  Id.  403 ;  Hiester  v. 
Green,  48  Id.  96 ;  though  a  lien  may  be  created  by  express  charge  in  the 
conveyance  :  Heist  v.  Baker,  49  Penn.  St.  9  ;  North  Carolina — Womble  v. 
Battle,  3  Ired.  Eq.  182 ;  Henderson  v.  Burton,  3  Id.  259 ;  Cameron  v. 
Mason,  7  Id.  180 ;  South  Carolina — Wragg's  Rep.  v.  Comp.  Gen.,  2 
Dessaus.  509  ;  Maine — Phillbrook  t*.  Delano,  29  Maine  410  ;  Massachusetts 
— Gilman  v.  Brown,  1  Mason  191 ;  though  see  Wright  v.  Dame,  5  Mete.  503. 

Fifth.  Those  states  in  which  the  question  seems  yet  to  be  undecided : 
New  Hampshire — Arlin  v.  Brown,  44  N.  H.  102  ;  Connecticut — Watson  v. 
Well,  5  Conn.  468  ;  Dean  v.  Dean  6  Id.  285  ;  Atwood  v.  Vincent,  17  Id. 
575 ;  Delaware — Budd  v.  Basti,  1  Harrington  69.  No  vendor's  lien  exists 
in  Kansas  when  a  deed  absolute  on  its  face  is  given :  Simpson  v.  Mun- 
dee,  3  Kansas  172;  Brown  v.  Simpson,  4  Id.  76. 

In  the  United  States  Courts  this  lien  is  recognised :  Bayley  v.  Green- 
leaf,  7  Wheat.  46  ;  Chilton  v.  Braiden's  Adm'x.,  2  Black  458. 

As  against  creditors  or  purchasers,  the  existence  of  this  lien  is  a  point 
upon  which  the  decisions  are  contradictory  and  conflicting.     See  Bayley 
V.  Greenleaf,  7  Wheat.  46  ;  Moore  v.  Holcombe,  3  Leigh  597  ;  Harper  v. 
Williams,  1  Dev.  &  Bat.  Eq.  379 ;  Roberts  v.  Rose  et  al.,  2  Humph.  145 
Brown  v.  Vanlier  et  al.,  7  Humph.  239  ;  Repp  et  al.  v.  Repp,  12  Gill  &  J 
341 ;  Duval  V.  Bibb,  4  Hen.  &  M.  113  ;  Clark  v.  Hunt,  3  J.  J.  Marsh.  533 
Eubank  v.  Poston,  5  Monr.  285  ;  Kyles  r.  Tait,  6  Gratt.  44 ;  Kilpatrick  r 
Kilpatrick,  23  Miss.  (Cushm.)   124 ;  Green  v.  Demos,  10  Humph.  371 
Webb  V.  Robinson,  14  Geo.  216 ;  MacAlpine  v.  Burnett,  23  Texas  649 
Chance  r.  McWhorter,  26  Geo.  315  ;  Selby  v.  Stanley,  4  Minn.  65.     See 
note  to  Mackreth  v.  Symmons,  supra. 


286  ADAMS's    DOCTRINE    OP    EQUITY. 

of  charge.  It  is  treated,  therefore,  as  a  security  in  the 
nature  of  mortgage  5^  and  the  remedy  under  it  is  by  suing 
in  equity  to  have  the  estate  resold,  and  the  deficiency,  if 
any,  made  good  by  the  defendant ;  or  else  to  have  the 
contract  rescinded,  retaining  the  deposit  as  forfeited, 
which  is  practically  equivalent  to  a  foreclosure  of  the 
charge.  (0) 

The  character  of  this  lien  as  an  enforceable  charge,  pro- 

{z)  1  Sag.  V.  &  P.  427. 


The  lien  arises  on  the  conveyance  of  an  equitable,  as  well  as  a  legal 
estate :  Warren  v.  Fenn,  28  Barb.  335 ;  Bledsoe  v.  Games,  30  Missouri 
448 ;  1  Lead.  Gas.  Eq.  363  ;  Hill  v.  Grigsby,  32  Cal.  55.  And  on  the  sale 
of  a  term  of  years:  Bratt  v,  Bratt,  21  Md.  578.  In  Burns  v.  Taylor,  23 
Ala.  255,  it  was  said  to  apply  to  an  exchange  with  the  same  force  as  to  a 
sale  for  money ;  and  see  Wickmen  v.  Robinson,  14  "Wis.  493.  See  also. 
Child  v.  Burton,  6  Bush  617  ;  where  a  lien  was  held  to  have  attached  on 
other  land  exchanged  by  the  vendee  for  the  land  sold. 

The  lien  of  a  vendor  after  conveyance  is  to  be  distinguished  from  the 
interest  of  the  vendor  under  articles  before  conveyance.  The  former  is  a 
mere  charge ;  the  latter  is  an  estate.  See,  however,  Hall  v.  Jones,  21  Md. 
439;  and  Haughwout  p.  Murphy,  7  C.  E.  Green  531.  After  conveyance 
the  whole  estate  both  legal  and  equitable  passes  to  the  vendee,  and  the 
vendor  has  a  mere  naked  right  to  the  purchase-money  enforceable  against 
the  land.  Before  conveyance,  however,  and  while  there  is  a  contract  of 
sale  only,  the  vendor  has  the  legal  estate  in  the  land,  and  the  vendee  has 
the  equitable  interest,  th«  former  being  a  trustee  of  the  beneficial  interest 
in  the  land  for  the  latter  ;  the  latter  being  a  trustee  of  the  purchase-money 
for  the  former.  See  Chapter  on  Conversion,  post.  This  distinction  has 
in  many  cases  in  this  country  been  disregarded,  and  the  interest  of  a  vendor 
under  articles  or  a  title-bond  treated  as  if  it  were  the  same  as  the  equit- 
able lien  for  purchase-money  after  a  conveyance  has  been  executed.  Such, 
howevfer,  is  by  no  means  the  case,  and  the  distinction  above  stated  should 
always  be  kept  in  view. 

The  lien  of  the  vendee  who  has  prematurely  paid  his  purchase-money 
has  been  recognised  in  this  country  :  Wickman  v.  Robinson,  14  Wis.  493. 
And  as  to  this  lien,  see  Rose  v.  Watson,  10  House  of  Lords  Cas.  672. 

^  It  is  contended  by  the  author  of  the  American  note  to  Mackreth  v. 
Symmons  (supra),  that  this  lien  does  not  partake  of  the  nature  of  a  mort- 
gage :  1  Lead.  Cas.  Eq.  373 ;  and  ees  ShoflFner  v.  Fogleman,  I  Wins.  (N.  C.) 
No.  2  (Eq.)  12. 


PERFECT  AND  IMPERFECT  MORTGAGES.    287 

tects  it  from  being  lost  by  postponing  the  day  of  pay- 
ment.^ For  such  postponement,  though  inconsistent  with  a 
right  of  detainer,  is  not  inconsistent  with  a  right  of  charge. 
Nor  will  it  be  lost  by  taking  a  bill,  note,  or  bond,  as 
a  security  for  the  consideration,  although  such  security 
be  payable  at  a  future  day.(«)^     It  is  different  if  the 

(a)  Winter  v.  Ansoo,  3  Rues.  488. 

*  Whether  the  lien  is  barred  when  the  debt  is  barred  by  the  Statute  of 
Limitations  seems  not  be  settled.  See  1  Lead.  Cas.  Eq.  370 ;  also  Little- 
john  V.  Gordon,  32  Miss.  235. 

*  It  is  incumbent  upon  the  party  contesting  the  vendor's  lien  to  show 
that  it  has  been  relinquished  ;  and  the  acceptance  of  personal  security,  is 
no  evidence  of  such  relinquishment:  Garson  v.  Green,  I  John.  Ch.  308 ; 
Tompkins  v.  Mitchell,  2  Rand,  428  ;  Campbell  v.  Baldwin,  2  Humph,  248 ; 
Gilman  r.  Brown,  1  Mason  192;  Tiernan  r.  Beam,  2  Ham,  383,  See  also, 
Evans  v.  Goodlet,  I  Blackf.  246  ;  Cox  v.  Fenwick,  3  Bibb  183  ;  White  v. 
Williams,  1  Paige  502;  Thornton  v.  Knox's  Ex'rs.,  6  B.  Monr.  74  ;  Ross 
r.  Whitson,  6  Yerg.  59  ;  Mims  v.  Macon,  3  Kelly  333.  See  note  to  Mack- 
reth  r.  Symmons,  ut  sup,,  where  it  is  stated  to  be  the  result  of  the  Ameri- 
can authorities,  "  that  the  implied  lien  will  be  sustained  wherever  the 
vendor  has  taken  the  personal  security  of  the  vendee  only,  by  whatever 
kind  of  instrument  it  be  manifested,  and  therefore  that  any  note,  bond,  or 
covenant,  given  by  the  vendee  alone,  will  be  considered  as  intended  only 
to  countervail  the  receipt  for  the  purchase-money  contained  in  the  deed,  or 
to  show  the  time  and  manner  in  which  the  payment  is  to  be  made,  unless 
there  is  an  express  agreement  between  the  parties  to  waive  the  equitable 
lien ;  and  on  the  other  hand,  that  the  lien  will  be  considered  as  waived 
whenever  any  distinct  and  independent  security  is  taken,  whether  by 
mortgage  of  other  land,  or  pledge  of  goods,  or  personal  responsibility  of 
a  third  person  (as  the  endorsement  of  the  vendee's  note),  and  also  when 
the  security  is  taken  upon  the  land,  either  for  the  whole  or  a  part  of  the 
unpaid  purchase-money,  unless  there  is  an  express  agreement  that  the 
implied  lien  shall  be  retained."  See  also,  Truebody  v.  Jacobson,  2  Cal. 
269;  Griffin  v.  Blanchar,  17  Id.  70;  Delassas  v.  Posten,  19  Miss.  425; 
Tiernan  ».  Thurman,  14  B.  Monr.  277;  Hare  v.  Deusen,  32  Barb.  92; 
Parker  County  »,  Sewell,  24  Tex,  238;  Harris  r,  Harlan,  14  Ind.  439; 
Selby  V.  Stanley,  4  Minn.  65 ;  Daughaday  r.  Paine,  6  Id.  443  ;  Hummer ». 
Schott,  21  Md.  307;  Fogg  ©.Rogers,  2  Cold.  (Tenn.)  290;  Schwartz  ». 
Stein,  29  Md.  112;  Hadley  v.  Pickett,  25  Ind,  450;  Porter  v.  Dubuque,  20 
Iowa  440  ;  McGonigal  v.  Plummer,  30  Md.  422 ;  Sullivan  v.  Ferguson,  40 


288  ADAMS's    DOCTRINE    OF    EQUITY. 

security  be  itself  the  consideration,  as,  for  example,  if  the 
conveyance  profess  to  be  in  consideration  of  a  covenant 
to  pay,  and  not  in  consideration  of  actual  payment.  ($) 
If,  however,  the  security  is  inconsistent  with  a  continu- 
ance of  the  charge,  the  lien  is  at  an  end ;  as,  for  example, 
if  a  mortgage  be  made  on  the  same  estate  for  part  of  the 
price,  or  on  part  of  the  estate  for  the  whole  price ;  for 
either  of  these  securities  contradicts  the  notion  that  the 
whole  price  is  to  be  a  charge  on  the  whole  estate,  (c)  The 
question  whether  in  each  particular  case  the  lien  is  re- 
linquished, can  only  be  determined  by  the  special  cir- 
cumstances. If  the  nature  of  the  thing  bought,  and  of 
the  consideration  for  it,  exclude  the  supposition  that  the 
lien  was  relied  on,  that  circumstance  will  have  weight  in 
r*l  9Q1  ^^^  decision ;  or  if  a  security  be  taken  of  *a  cha- 
racter and  value  which  show  that  credit  was 
exclusively  given  to  that  security,  that  fact  also  will  have 
its  weight.  But  the  question  is  always  one  of  intention, 
to  be  collected  from  circumstances  which  have  taken 
place.  (^)^ 

(6)  Clarke  v.  Royle,  3  Sim.  499  ;  Parrott  v.  Sweetland,  3  M.  &  K.  655 ; 
Bucknell  v.  Pocknell,  13  Sim.  406. 

(c)  Capper  v.  Spottiswoode,  Taml.  21  ;  Bond  v.  Kent,  2  Vern.  281. 

{d)  Nairn  v.  Prowse,  6  Ves.  752 ;  Mackreth  v.  Symmons,  15  Id.  329 ; 
Winter  v.  Anson,  3  Russ.  488 ;  3  Sug.  Y.  &  P.  c.  xviii. 

Mo.  79  ;  Yaryan  v.  Shriner,  26  Ind.  364;  Armstrong  ».  Ross,  20  N.  J.  Eq. 
109.  See,  however,  Burrus  v.  Roulhac,  2  Bush  (Ky.)  39;  where  it  was 
held  that  the  acceptance  of  a  guaranteed  note  did  not  waive  the  lien  ; 
and  see  also,  Anketel  v.  Converse,  17  Ohio  11 ;  where  a  purchase-money 
mortgage  was  held  not  to  extinguish  the  lien.  Also  Dodge  v.  Evans,  43 
Miss.  570;  Fonda  v.  Jones,  42  Miss.  792;  Sanders  w.  McAfee,  41  Ga.  684; 
Burette  v.  Briggs,  47  Mo.  356 ;  Carrico  v.  Farmers'  Bank,  33  Md.  235. 

*  The  lien  may  be  waived  by  conduct  showing  that  intention  :  see  Clark 
V.  Hunt,  3  J.  J.  Marsh.  553.  In  some  of  the  states  the  lien  may  be  en- 
forced without  a  judgment:  High  and  Wife  v.  Batte,  10  Yerg.  186 ;  Gal- 


PERFECT  AND  IMPERFECT  MORTGAGES.    289 

The  sixth  and  seventh  classes  of  imperfect  mortgages, 
are  those  of  equitable  fieri  facias  and  elegit,  and  judgment 
charges  under  1  &  2  Vict.  c.  110,  ss.  13,  14. 

The  writs  of  fieri  facias  and  elegit  are  writs  of  execu- 
tion after  judgment,  respectively  requiring  the  sheriff  to 
levy  the  debt  out  of  the  debtor's  personal  or  real  estate. 
And  being  writs  issued  out  of  the  common  law  Courts, 
they  are  confined  in  their  operation  to  legal  interests.  If 
the  debtor  be  entitled  to  a  trust  or  equity  of  redemption, 
his  interest  is  exempt  from  execution  at  law,  and  must  be. 
attached,  if  at  all,  by  suit  in  equity.  A  partial  exception 
to  this  rule  was  introduced  by  the  Statute  of  Frauds, 
giving  legal  execution  against  the  real  estate  of  which  any 
person  was  seise.d  in  trust  for  the  debtor  at  the  time  of 
execution  sued  out.  But  the  enactment  did  not  extend 
to  chattels  real,  to  trusts  under  which  the  debtor  has  not 
the  whole  interest,  to  equities  of  redemption,  or  to  any 
equitable  interest  which  had  been  parted  with  before  exe- 
cution sued  out.(e) 

The  remedy  afforded  to  the  creditor  in  equity,  when 
either  of  these  writs  has  been  issued,  is  termed  an  equi- 
table fieri  facias,  or  elegit,  according  as  it  is  sought  against 
personal  or  real  estate. 

(e)  29  Car.  2,  c.  2,  s.  10;  Forth  p.  Duke  of  Norfolk,  4  Mad.  503. 

loway  V.  Hamilton's  Heirs,  1   Dana  576  ;  Richardson  w.  Baker,  5  J.  J. 
Marsh.  323. 

As  to  whether  this  lien  passes,  on  the  assignment  of  the  debt  for  the 
unpaid  purchase-money,  to  the  assignee,  the  authorities  are  in  conflict  in 
the  different  states :  see  the  note  toMackreth  v.  Symmons,  ut  supr.,  where 
the  matter  is  fully  discussed.  And  see  Fisher  v.  Johnson,  5  Indiana  492  ; 
Kern  v.  Hazlerigg,  11  Id.  443  ;  Keith  v.  Horner,  32  111.  524  ;  Simpson  v. 
Montgomery,  25  Ark.  365;  Wells  v.  Morrow,  38  Ala.  125;  Lindsey  ». 
Bates,  42  Miss.  397 ;  Carter  v.  Sims,  2  Heisk.  (Tenn.)  166. 
19 


290  ADAMS's    DOCPRINE    OF    EQUITY. 

Its  modus  operandi  is  of  a  threefold  character,  first  by 
injunction  against  setting  up  an  outstanding  estate  in  bar 
of  execution  at  law ;  secondly,  by  appointment  of  a  re- 
ceiver; and,  thirdly,  in  the  case  of  an  equity  of  redemp- 
tion, by  permitting  the  judgment  creditor  to  redeem.  But 
it  is  strictly  confined  to  its  legitimate  object,  viz.,  the  im- 
r*l^m  P^^i^S  *^^  t^®  equitable  interest  the  liability 
which  would  attach  at  law  on  a  corresponding 
legal  interest.  In  accordance  with  this  principle,  no  relief 
can  be  obtained  in  equity  until  the  title  is  perfected  at  law 
by  suing  out  the  writ ;  but  it  is  not  necessary  that  the 
writ  should  be  returned.  There  is  an  apparent  exception 
to  this  rule  where  the  judgment  creditor  is  seeking  to  re- 
deem a  mortgage,  or  where  the  debtor  is  dead,  and 
administration  of  his  assets  is  wanted.  In  the  former  case, 
the  Court,  finding  the  creditor  in  a  condition  to  acquire  a 
power  over  the  estate  by  suing  out  the  writ,  acts,  as  it 
does  in  all  similar  causes,  and  enables  him  to  redeem  other 
encumbrances ;  in  the  latter,  if  under  any  circumstances 
the  estate  is  to  be  sold,  it  pays  off  the  judgment,  because 
it  will  not  sell  subject  to  the  debt,  and  it  cannot  otherwise 
make  a  title  to  the  estate.  In  accordance  with  the  same 
principle,  a  sale  will  not  be  decreed  on  an  equitable  ekffit, 
'  unless  a  special  jurisdiction  supervenes,  e.  ff.,  in  a  suit  to 
administer  the  debtor's  assets ;  but  the  relief  is  confined 
to  perception  of  rents.  Nor  will  a  decree  be  made  for 
charging  property  by  way  of  equitable  ^eri  facias  or  ekpt, 
if  the  property  be  of  a  kind  exempt  from  execution  at 
law,  e.  g.,  stock  or  shares ;  nor  for  charging  (independently 
of  the  late  statute)  more  than  the  moiety  of  a  trust  in 
land ;  but  it  is  otherwise  with  respect  to  an  equity  of  re- 
demption, for  the  judgment  creditor  is  obliged  to  redeem 


PERFECT    AND    IMPERFECT    MORTGAGES.         291 

the   entirety,  and  cannot  be  afterwards  deprived  of  it 
without  payment  of  his  demand.  (/) 

The  rights  of  a  judgment  creditor,  except  as  against 
purchasers  and  mortgagees  without  notice,  are  much  in- 
creased by  a  late  statute.  The  operation  of  i\\.Q  fieri  facias 
and  elegit  at  law  is  extended,  and  a  new  right  is  intro- 
duced by  way  of  equitable  charge,  enforceable  in  like 
manner  with  a  charge  by  contract.  It  is  enacted  by  the 
same  statute,  that  decrees  and  orders  of  Courts  of  equity, 
and  all  rules  *of  Courts  of  law  and  orders  in  r*iQi-i 
bankruptcy  and  lunacy  for  payment  of  money, 
shall  have  the  effect  of  judgments.  And  that  judgments, 
rules,  and  orders  of  certain  inferior  Courts,  may  be  re- 
moved into  a  superior  Court,  and  acted  on  as  a  judgment 
thereof;  but  not  so  as  to  operate  against  purchasers  or 
creditors  until  delivery  of  the  writ.(^) 

The  operation  of  the  elegit  at  law  is  extended,  so  as  te 
bind  the  entirety,  instead  of  a  moiety  of  the  debtor's  land, 
to  include  lands  of  copyhold  and  customary  tenure,  lands 
over  which  the  debtor  has  a  sole  disposing  power  exer- 
cisable for  his  own  benefit,  and  lands  of  which  the  debtor, 
or  any  person  in  trust  for  him,  is  seised  or  possessed  at 
the  time  of  entering  the  judgment.  It  appears,  therefore, 
to  include  leaseholds  and  trust  estates,  belonging  to  the 
debtor  at  the  date  of  the  judgment,  and  to  render  his 
alienation  of  the  one  before  the  delivery  of  the  writ, 
or  of  the  other  before  execution  is  sued  out,  no  longer 
material,  (/i) 

(/)  Mitf.  126  5  Neate  v.  Duke  of  Marlborough,  3  M.  &  C.  407  ;  Stileman 
V.  Ashdown,  2  Atk.  608  ;  Rider  v.  Kidder,  10  Ves.  360,  368  ;  Skeeles  v. 
Shearley,  3  M.  &  C.  112. 

{g)l&.2  Vict.  c.  110,  s.  9-22  ;  2  Vict.  c.  11,  s.  5. 

(A)  1  &  2  Vict.  c.  110,  8.  11  ;  2  Sug.  V.  &  P.  401 ;  5  Jarm.  Byth.  48  ;  1 
Id.  107  ;  Prideaux  on  Judgments  58. 


292  .      ADAMS's    DOCTRINE    OF    EQUITY. 

The  operation  of  the  fieri  facias  at  law  is  extended  by 
authorizing  the  sherifT  to  seize  money,  bank  notes,  bills  of 
exchange,  and  other  securities,  to  pay  the  money  or  notes 
to  the  creditor,  and  to  sue  on  the  bills  or  securities  in  his 
own  name,  paying  over  the  money  to  be  recovered  to  the 
creditor.  (^) 

The  remedies  by  equitable  fieri  facias  and  elegit  will  of 
course  be  extended  in  a  corresponding  degree ;  but  they 
are  still  far  from  satisfactory  remedies.  The  elegit  is 
imperfect,  because  it  can  only  operate  by  perception  of 
profits,  and  does  not  authorize  acceleration  of  payment  by 
a  sale;  the^. /a.  is  imperfect  because  it  cannot  operate 
on  stock  or  shares. 

In  order  to  obviate  these  difficulties  the  judgment 
charge  has  been  introduced. 

r*l  S21  *The  right  to  an  elegit  or  fietn  facias,  whether 
legal  or  equitable,  is  left  untouched,  and  in  the 
case  of  personal  estate,  other  than  stock  or  shares,  no  al- 
teration has  been  made.  But  with  respect  to  real  estate, 
whether  legal  or  equitable,  and  whether  liable  to  execution 
or  not,  and  with  respect  to  interest  in  stock  or  shares, 
whether  legal  or  equitable,  the  operation  of  the  judgment 
is  still  further  extended,  and  it  is  constituted,  under  cer- 
tain restrictions,  an  actual  charge  in  equity ;  but  the  ope- 
ration of  such  charge,  as  well  as  the  extended  execution 
under  the  preceding  clauses,  is  declared  of  no  effect  as 
against  purchasers  or  mortgagees  without  notice,  (k) 

The  judgment  charge  on  real  estate  is  created  by  an 
enactment,  that  a  judgment  properly  registered  shall 
operate  as  a  charge  in  equity  on  all  lands  and  heredita- 
ments, including  copyholds  and  customary  holds,  to 
which  the  debtor  may,  at  or  after  the  time  of  entering 

(f)  1  &  2  Vict.  c.  110,  s.  12.  (A:)  2  &  3  Vict.  c.  11,  s.  5. 


PERFECT  AND  IMPERFECT  MORTGAGES.    293 

the  judgment,  be  entitled,  for  any  estate  or  interest  at 
law  or  in  equity,  whether  in  possession,  reversion,  or  re- 
mainder, or  expectancy,  or  over  which  he  may  at  either  of 
such  times  have  a  sole  disposing  power  exercisable  for  his 
own  benefit,  and  shall  be  binding  against  himself  and  all 
persons  claiming  under  him,  and  also  against  his  issue  and 
persons  whom,  without  assent  of  any  other  person,  he 
might  bar,  with  the  like  remedies  in  equity  for  its  enforce- 
ment, as  if  he  had  by  writing  under  his  hand  agreed  to 
charge  them  with  the  debt  and  interest.  But  it  is  enacted, 
that  no  judgment  creditor  shall  be  entitled  to  proceed  in 
equity  to  obtain  the  benefit  of  such  charge,  until  after  the 
expiration  of  one  year  from  the  time  of  entering  up  the 
judgment;  and  that  no, such  charge  shall  operate  to  give 
any  preference  in  bankruptcy,  unless  such  judgment  shall 
have  been  entered  up  one  year  at  least  before  the  bank- 
ruptcy. (^ 

*The  judgment  charge  on  stocks  and  shares  is  r^-t  qo-i 
created  by  enactments,  that  if  a  judgment  debtor 
have  an  estate  or  interest  in  stock  or  shares,  or  in  the  divi- 
dends or  interest  of  stock  or  shares  standing  in  his  name 
in  his  own  right,  or  in  the  name  of  any  other  person  in 
trust  for  him,  or  in  the  name  of  the  Accountant-General, 
a  judge's  order  may  be  obtained,  to  be  made  in  the  first 
instance  ea^  parte,  and  afterwards  made  absolute  on  notice, 
charging  such  stock  or  shares,  or  any  part  thereof,  or  the 
dividends  or  interest  thereon,  with  payment  of  the  judg- 
ment debt  and  interest ;  and  that  such  order  shall  entitle 
the  judgment  creditor  to  the  same  remedies  as  if  the 
charge  had  been  made  by  the  debtor  himself;  provided 
that  no  proceedings  shall  be  taken  to  have  the  benefit  of 

(Z)  1  &  2  Vict.  c.  110,  8.  13  ;  Smith  v.  Hurst,  1  Coll.  705;  Clare©.  Wood, 
4  Hare  81 ;  Harris  v.  Davison,  15  Sim.  128. 


294  ADAMS'S    DOCTRINE    OF    EQUITY. 

such  charge  until  after  the  expiration  of  six  calendar 
months  from  the  date  of  the  order.  (772) 

Under  these  clauses  the  right  of  the  judgment  creditor 
is  no  longer  restricted  to  property  which  is  capable  of 
seizure,  nor  to  the  inconvenient  remedy  by  perception  of 
profits ;  but  is  extended  to  all  property,  both  legal  and 
equitable,  and  may  be  made  available  by  sale. 

A  clause  is  contained  in  the  act  for  the  purpose  of  pre- 
cluding a  creditor  from  enforcing  his  remedies  under  it 
against  the  debtor's  property,  and  at  the  same  time  taking 
the  debtor's  person  in  execution.  The  common  law  rule 
on  this  subject  is,  that  if  part  only  of  the  debt  be  levied 
on  2ifi.fa.,  or  on  execution  had  of  goods  under  an  elegit, 
the  plaintiff  may  have  a  capias' a^  satisfaciendum  for  the 
residue;  but  that  if  lands  be  seized  under  an  elegit,  the 
execution  is  of  so  high  a  nature  that  after  it  the  body  of 
the  defendant  cannot  be  taken,  (w)  The  statutory  enact- 
ment is  that,  if  a  judgment  creditor  who  under  the  powers 
of  the  act  shall  have  obtained  a  charge,  or  be  entitled  to 
r*1  ^/tl  ^^^  benefit  *of  a  security,  shall  afterwards  and 
before  the  property  so  charged  or  secured  shall 
have  been  realized,  and  the  produce  applied  towards  pay- 
ment of  the  debt,  cause  the  person  of  the  debtor  to  be 
taken  in  execution,  he  shall  be  deemed  to  have  relin- 
quished such  charge  or  security.  (0) 

(to)  1  &  2  Vict.  c.  110,  88.  14  &  15;  3  &  4  Vict.  c.  82,  s.  1  ;  Bristed  v. 
Wilkins,  3  Hare  235. 
(»)  3  Steph.  Bl.  650,  652. 
(o)  1  &  2  Vict.  c.  110,  s.  16  ;  Houlditch  v.  Collins,  5  Bea.  497. 


OF    CONVERSION,    ETC.  295 


*CHAPTER    IV.  [n35] 

OF  CONVERSION PRIORITIES ^NOTICE TACKING. 

In  immediate  connection  with  the  subjects  just  con- 
sidered, of  trusts,  contract,  and  mortgage,  we  have  to 
consider  the  doctrines  of  equitable  conversion,  and  of 
priority  among  conflicting  equities;  doctrines  which, 
though  applicable  to  all  subjects  of  equitable  jurisdic- 
tion, are  more  especially  important  in  regard  to  these. 

The  doctrine  of  Equitable  Conversion  is  embodied  in 
the  maxim  that  "What  ought  to  be  done,  is  considered  in 
equity  as  done;"  and  its  meaning  is,  that  whenever  the 
holder  of  property  is  subject  to  an  equity  in  respect  of  it, 
the  Court  will,  as  between  the  parties  to  the  equity,  treat 
the  subject-matter  as  if  the  equity  had  been  worked  out, 
and  as  impressed  with  the  character  which  it  would  then 
have  borne. 

The  simplest  operation  of  this  maxim  is  found  in  the 
rule  already  noticed,  that  trusts  and  equities  of  redemp- 
tion are  treated  as  estates  ;  but  its  effect  is  most  obvious 
in  the  constructive  change  of  property  from  real  to  per- 
sonal estate,  and  vice  versa,  so  as  to  introduce  new  laws  of 
devolution  and  transfer. 

Let  us  first  consider  the  doctrine  in  its  operation  under 
a  trust. 

The  rule  in  respect  to  trusts  is,  that  if  an  imperative 
trust  is  created  either  for  employing  money  in  the  pur- 


^96  ADAMS's    DOCTRINE    OF    EQUITY. 

chase  of  land,  or  for  selling  land  and  turning  it  into 
r*1  Rfil  *Dioney,  the  money  or  land,  of  which  a  conver- 
sion is  directed,  will  be  dealt  with  in  equity  dur- 
ing the  continuance  of  the  trust,  and  for  objects  within 
the  scope  of  the  trust,  as  if  the  purchase  or  sale  had  been 
actually  made.(a)^ 

(a)  Fletcher  v.  Ashburner,  1  B.  C.  C.  497. 

^  The  rule  is  well  settled  that  where  there  is  an  absolute  and  imperative 
direction  that  land  shall  be  sold  and  turned  into  money,  or  money  be  em- 
ployed in  the  purchase  of  land,  the  money  is  considered  in  equity  in  all 
respects  as  converted  into  land,  or  the  land  into  money,  as  the  case  may 
be :  Craig  v.  Leslie,  3  Wheat.  564 ;  Peter  v.  Beverly,  10  Peters  532 ;  Tay- 
lor V.  Benham,  5  How.  233  ;  Hawley  v.  James,  5  Paige  320 ;  Smith  v. 
McCrary,  3  Ired.  Eq.  204 ;  Gott  v.  Cook,  7  Paige  534 ;  Commonwealth  v. 
Martin's  Ex'rs.,  5  Munf.  117 ;  Kane  v.  Gott,  24  Wend.  660;  Johnsons. 
Bennett,  39  Barb.  251 ;  Pratt  v.  Taliaferro,  3  Leigh  419 ;  Rutherford  v. 
Green,  2  Ired.  Eq.  122 ;  Siter  v.  McClanachan,  2  Gratt.  280  ;  Harcum  v. 
Hadnall,  14  Id.  369 ;  Wilkins  v.  Taylor,  8  Rich.  Eq.  294 ;  Reading  v. 
Blackwell,  1  Bald.  166  ;  Hurtt  v.  Fisher,  1  liar,  &  G.  88  ;  Leadenham  v. 
Nicholson,  Id.  267 ;  Morrow  v.  Brenizer,  2  Rawle  185 ;  Burr  v.  Sim.  1 
Whart.  265  ;  Smith  v.  Starr,  3  Id.  65 ;  Rice  v.  Bixler,  1  W.  &  S.  445  ;  Wil- 
ling V.  Peters,  7  Penn.  St.  287  ;  Parkinson's  Appeal,  32  Id.  455 ;  Brolasky 
V.  Gally's  Ex'rs.,  51  Id.  509  ;  Scudder  v.  Vanarsdale,  2  Beas.  109  ;  Loril- 
lard  V.  Coster,  5  Paige  172;  Drake  v.  Pell,  3  Edw.  Ch.  251 ;  Thomas  v. 
Wood,  1  Md.  Ch.  296  ;  Collins  v.  Champ's  Heirs,  15  B.  Monr.  118.  A  col- 
lection of  the  English  authorities  on  this  subject  will  be  found  in  Fon- 
blanque's  Eq.,  Vol.  I., Book  1,  Ch.  6,  Sec.  ix.,  notes  s  and  t.  See  the  notes 
to  Fletcher  v.  Asburner,  1  Lead.  Cas.  in  Eq.  659.  Where  one  by  will 
directed  real  estate  to  be  sold,  and  the  proceeds  divided  among  residuary 
legatees,  and  one  of  them,  a./eme  coverte,  died  before  the  time  of  payment, 
it  was  held  that  the  land  must  be  considered  as  money  ;  and  there  being 
no  election  by  the  Jeme  coverte  to  take  the  legacy  as  land,  the  devise  passed 
to  the  husband  and  his  representatives  as  personalty  :  Rinehart  v.  Harrison, 
Baldw.  177.  And  where  a  will  directs  executors  to  sell  the  real  estate,  and 
distribute  the  proceeds  in  a  manner  specified,  the  land  will  be  treated  as 
personal  property,  and  upon  the  death  of  one  of  the  distributees  before 
the  time  appointed  for  the  sale,  his  share  will  descend  as  personal  estate : 
Marsh  v.  Wheeler,  2  Edw.  Ch.  156 ;  Pratt  v.  Taliaferro,  3  Leigh  419 ; 
Reading  v.  Blackwell,  Baldw.  166 ;  Smith  v.  McCrary,  3  Ired.  Eq.  204 ; 
Hurtt  V.  Fisher,  1  Har,  &  G.  88  ;  Morrow  v.  Brenizer,  2  Rawle  185. 

Where  the  sale  is  made  by  the  act  of  the  law,  as  under  proceeding  for 


OF    CONVERSION,     ETC.  297 

The  points  which  require  notice  under  this  rule  are  the 
requirement  that  the  converting  trust  shall  be  imperative, 
and  the  limitation  of  the  continuance  and  purposes  of  the 
conversion  so  as  to  coincide  with  the  continuance  and 
purposes  of  the  trust. 

First,  the  conversion  must  be  directed  by  an  imperative 
trust;  for  if  the  trustees  are  entitled  to  exercise  a  discre- 
tion, there  is  no  duty  imposed  on  them  to  make  the  change 
and  no  reason  to  deal  with  the  property  as  if  they  had 
done  so.^  If,  for  example;  the  trustee  is  authorized  to 
"  sell  or  not  sell,"  as  he  may  think  best,  or  if  he  is  directed 
to  purchase  "freeholds   or  leaseholds,"  or  to  invest  "on 


payment  of  debts  or  to  make  partition,  there  is  no  conversion  until  all 
the  conditions  of  sale  are  complied  with,  at  least  so  far  as  to  entitle  the 
purchaser  to  a  deed:  Biggert's  Est.,  20  Penn.  St.  17;  and  see  Betts  r. 
Wirt,  3  Md.  Ch.  113 ;  Jones  v.  Plummer,  20  Id.  416. 

Where  land  is  not  converted  out  and  out,  and  at  all  events  into  personal 
property,  but  on  the  contrary  its  conversion  depends  upon  a  condition,  it 
will  not  be  considered  in  equity  as  personal  estate  :  Evans  v.  Kingsberry, 
2  Rand.  120.  So  if  it  depend  upon  a  contingency :  Naglee  r.  Ingersoll,  7 
Penn.  St.  197. 

'  If  there  is  an  absolute  direction  to  sell  it  is  not  material  that  the  time 
of  sale,  if  fixed,  is  postponed  :  Reading  v.  Biackwell,  Baldw.  C.  C.  166 ; 
Rinehart  v.  Harrison,  Id.  177 :  Hocker  r.  Gentry,  3  Mete.  473  ;  see,  also, 
Barnett  v.  Barnett's  Adm'r.,  1  Id.  258.  Where  the  power  of  sale,  however, 
is  discretionary,  there  is  no  conversion  till  it  is  actually  exercised :  Domi- 
nick  V.  Michael,  4  Sandf.  S.  C.  .374;  Bleight  v.  Bank,  10  Penn.  St.  132; 
Pratt  V.  Taliaferro,  3  Leigh  419 ;  Montgomery  v.  Milliken,  1  Sm.  &  M. 
Ch.  495;  Greenway  v.  Greenway,  2  De  G.,  F.  &  J.  128.  So  where  the 
power  is  to  be  exercised  with  the  consent  of  the  parties  interested :  Nagle's 
Appeal,  13  Penn.  St.  262 ;  Stoner  v.  Zimmerman,  21  Id.  394 ;  Ross  v. 
Drake,  37  Id.  373  ;  Anewalt's  Appeal,  42  Id.  414.  But  a  mere  discretion 
given  as  to  the  time  when  the  power  is  to  be  exercised,  will  not  prevent  a 
conversion  where  the  direction  to  sell  is  absolute :  Stagg  v.  Jackson,  1 
Comstock  206  ;  Tazewell  v.  Smith,  1  Rand.  313  ;  though  see  contra,  Christ- 
ler's  Ex'rs.  v.  Meddis,  6  B.  Monr.  35.  A  mere  power  to  sell  will  not  work 
a  conversion :  Phelps  v.  Pond,  23  N.  Y.  69 ;  Chew  v.  Nicklin,  45  Penn. 
St.  84. 


298  ADAMS's    DOCTEINE     OF    EQUITY. 

land  or  good  security,"  there  is  no  positive  expression  of 
intention  to  convert,  and  the  Court  in  dubio  will  not  inter- 
fere ;  but  the  use  of  such  expressions,  or  of  others  which 
in  terms  imply  an  option,  will  not  deprive  the  trust  of 
an  imperative  character,  if  other  portions  of  the  instrument 
show  a  contrary  intent.  A  mere  declaration  that  the  pro- 
perty shall  be  considered  as  converted  is  immaterial ;  for 
it  is  not  the  declaration,  but  the  duty  to  convert,  which 
creates  the  equitable  change.  (^)^ 

Secondly,  the  duration  of  the  converted  character  is 
coincident  with  that  of  the  trust.  For  the  conversion 
originates  in  the  duty  of  the  trustee ;  and  if  the  trust  be 
countermanded  either  by  the  exercise  of  a  revoking  power 
in  the  donor,  or  by  the  act  of  those  in  whom  the  absolute 
dominion  has  vested,  the  duty  is  at  an  end ;  and  the  con- 
structive conversion  is  determined  with  it. 

Where  the  trust  is  countermanded  by  the  subsequent 

r*1  ^71    ^owners,  their  act  is  denominated  a  reconversion.^ 

And  such  act  must  be  equally  unequivocal  with 

(6)  Thornton  v.  Hawley,  10  Ves.  129  ;  Polley  v.  Seymour,  2  Y.  &  C.  708  ; 
Cookson  ».  Cookson,  12  CI.  &  F.  121 ;  Attorney-General  v.  Mangles,  5  Mee. 

6  W.  128. 

1  Taylor  v.  Taylor,  3  De  G.,  M.  &  G.  190 ;  Robinson  v.  The  Governors, 
&c.,  10  Hare  29. 

*  Though  land  directed  to  be  sold  is  considered  as  money,  yet  an  election 
may  be  made  by  those  having  a  right  to  elect  to  take  it  as  land  :  Tazewell 
V.  Smith,  1  Rand.  313  5  Craig  v.  Leslie,  3  Wheat.  578  ;  Burr  v.  Sim,  1  Whart. 
252 ;  Broome  v.  Curry,  19  Ala.  805.  But  this  election  must  be  by  some 
unequivocal  act,  and  all  the  parties  interested  must  join  :  Willing  v.  Peters, 

7  Penn.  St.  290  ;  Pratt  v.  Taliaferro,  3  Leigh  428  ;  Harcum  v.  Hudnall,  14 
Gratt.  369 ;  High  v.  Worley,  33  Ala.  196 ;  Beatty  v.  Byers,  18  Penn.  St. 
105 ;  Dixon  i\  Gayfere,  1  De  G.  &  J.  655.  Mere  lapse  of  time,  however 
great,  is  not  sufficient :  Beatty  v.  Byers.  Nor  the  mere  entering  into  and 
taking  possession  of  the  estate  :  Dixon  v.  Gayfere.  As  to  the  power  of  an 
infant  to  make  an  election,  see  Burr  13.  Sim  ;  Pratt  v.  Taliaferro  ;  Fletcher 
V.  Ashburner  (supra). 


OF    CONVERSION,     ETC.  299 

the  original  trust.  It  need  not,  however,  be  evidenced 
by  an  express  declaration  of  change.  It  is  sufficient  if 
the  conduct  of  the  parties  distinctly  shows  an  intention 
to  deal  with  the  property  in  its  original,  instead  of  its 
converted  character  ;  as,  for  example,  by  entering  on  and 
demising  land  which  is  directed  to  be  sold,(c)  or  by  re- 
ceiving or  reinvesting  money  which  is  directed  to  be  laid 
out  in  land.(</)  But  if  an  estate  is  directed  to  be  sold, 
and  the  proceeds  to  be  divided  among  several  persons,  a 
reconversion  cannot  be  effected  until  all  are  competent 
and  willing  to  join  ;  for  the  duty  imposed  on  the  trustee, 
is  to  convert  the  entire  estate  for  the  benefit  of  all,  and 
that  duty  continues  until  countermanded  by  all.(^) 

The  receipt  by  the  cestui  que  trust  of  money  convertible 
into  land  operates,  as  we  have  seen,  as  a  reconversion. 
And  the  same  result  follows  where  a  covenant  has  been 
entered  into  for  purchasing  land  on  trust,  and  the  cove- 
nantee has  become  the  only  cestui  que  trust.  In  this  case 
the  money  is  said  to  be  "  at  home  "  in  his  hands  ;  and  the 
union  of  the  double  character  in  himself  operates  as  a  con- 
structive receipt,  and  determines  the  trust.  (/) 

It  has  been  contended  that  the  right  to  countermand  the 
converting  trust  renders  a  gift  of  the  proceeds  of  conver- 
sion equivalent  to  a  gift  of  the  unconverted  property  5  and, 
consequently,  that  a  gift  of  land  to  a  trustee,  on  trust  to 
sell  and  pay  the  proceeds  to  an  alien,  is  invalid  as  against 
the  policy  of  law.  But  it  is  decided  otherwise ;  for  the 
trust  is  in  truth  a  compliance  with  the  law  by  direct- 

(c)  Crabtree  r.  Bramble,  3  Atk.  680. 

\d)  Lingen  v.  Sowray,  1  P.  W.  172 ;  Cookson  v.  Cookson,  12  CI.  &  F.  121. 

(c)  Fletcher  v.  Ashburner,  1  B.  C.  C.  497,  500;  Deeth  r.  Hale,  2  Moll. 
317  ;  Seeley  v.  Jago,  1  P.  W.  389. 

(/)  Pulteney  v.  Darlington,  1  B.  C.  C.  223,  238 ;  7  B.  P.  C.  by  Toml. 
530 ;  Wheldale  v.  Partridge,  8  Yes.  227,  235. 


300      I      '      ADAMS's    DOCTRINE    OF    EQUITY. 

ing  that  the  land  shall  be  sold  to  persons  who  may 
r*1  ^81  *l^S^lly  ^^^^  i^?  i^  order  to  raise  the  money  which 
the  alien  may  legally  hold.  And,  although  the 
alien  would  be  entitled  to  elect  against  the  conversion, 
there  is  no  reason  to  force  that  election  on  him,  or  to  in- 
flict a  forfeiture  of  money,  which  he  can  enjoy,  because 
he  might  have  elected  to  take  land,  which  he  cannot.  (^)^ 
-  Thirdly,  the  conversion  will  operate  for  those  purposes 
only  which  fall  within  the  scope  of  the  trust. 

The  principal  doubts  on  this  point  have  arisen  in  re- 
gard to  resulting  trusts ;  viz.,  where  conversion  is  di- 
rected for  a  particular  purpose,  which  fails  to  exhaust  the 
entire  interest.  The  question  then  arises,  whether  the 
owner  under  the  resulting  trust  shall  be  determined  ac- 
cording to  the  original,  or  according  to  the  converted, 
nature  of  the  property. 

The  law  on  this  subject  has  been,  to  some  extent,  stated 
under  the  head  of  Resulting  Trust ;  but  it  will  be  con- 
venient to  restate  it  here. 

The  general  principle  is,  that  the  conversion  is  limited 
to  the  purpose  of  the  donor,  and  that,  therefore,  in  the 
event  of  failure,  the  property  will  devolve  according  to  its 
original  character/^  If,  for  example,  land  be  devised  for 
sale  with  a  direction  to  apply  the  produce  for  purposes 
altogether  illegal,  or  which  altogether  fail,  the  heir-at-law 
is  entitled.     If  the  purposes  are  partially  illegal,  or  par- 

( g)  Fourdrin  v.  Gowdey,  3  M.  &  K,  383  ;  Du  Hourmelin  v.  Sheldon,  1 
Bea.  79.;  4  M.  &  C.  525. 

'  Craig  V.  Leslie,  3  "Wheat  564 ;  Commonwealth  v.  Martin,  5  Munf. 
117;  Taylor  ».  Benham,  5  How.  U.  S.  269;  Anstice  v.  Brown,  6  Paige 
448. 

^  The  student  will  find  a  clear  statement  of  the  rule  upon  this  subject 
in  Bective  v.  Hodgson,  10  House  of  Lords  Cas.  656.  See  also,  Hill  on  Trus- 
tees 127-128,  and  notes. 


OF    CONVERSION,    ETC.  301 

tially  fail,  or  if  they  require  the  application  of  a  part  only 
of  the  land  devised,  he  is  entitled  to  so  much  of  the  land 
or  of  its  produce  as  was  destined  for  the  ineffective  pur- 
pose, or  so  much  as  is  not  required  for  the  purpose  of 
the  will.  And  e  converse,  if  a  purchase  of  land  be  di- 
rected for  purposes  which  are  altogether  or  partially 
illegal,  or  which  altogether  or  partially  fail,  the  next  of 
kin  are  entitled  to  the  money,  or  to  so  much  of  it,  as  can- 
not or  need  not  be  applied  to  the  purposes  of  the  will.(A)^ 

[h)  Cogan  r.  Stephens  ;  Lewin  on  Trustees,  App.  vii. ;  Hereford  v.  Ra- 
venhill,  1  Bea.  481;  Eyre  r.  Marsden,  2  K.  564, 574 ;  Ackroyd  r.  Smithson, 
1  B.  C.  C.  503. 

^  The  result  of  the  authorities  on  this  subject  ia,  that  where  land  is  de- 
vised to  be  sold  for  purposes  which  are  illegal,  or  fail,  in  whole  or  part,  or 
do  not  exhaust  the  whole  interest,  the  heir  takes  the  disappointed  interest, 
to  the  exclusion  of  the  next  of  kin.  Where  there  is  only  a  partial  failure 
or  lapse,  so  that  a  sale  is  still  necessary,  or  as  to  any  undisposed  of  sur- 
plus, the  heir  takes  the  money  as  land :  Craig  v.  Leslie,  3  Wheat.  564  ; 
Burr  V.  Sim,  1  Whart.  252  ;  Morrow  r.  Brenizer,  2  Rawle  185  ;  Pratt  v. 
Taliaferro,  3  Leigh  419;  Owens  v.  Cowan,  7  B.  Monr.  152;  Lindsay  v. 
Pleasants,  4  Ired.  Eq.  320;  Slocum  v.  Slocum,  4  Edw.  Ch.  613  ;  Bogert  v. 
Hertell,  4  Hill  (N.  Y.)  493.  The  converse  of  this  rule  applies  as  to  money 
to  be  laid  out  on  land  :  Hawley  p.  James,  5  Paige  323  ;  except  that  where 
the  money  is  disposed  of  only  for  a  limited  interest,  it,  or  the  land  when 
purchased,  beyond  that  interest,  goes  to  the  heir  :  2  Jarm.  Pow.  on  Dev.  74 ; 
Thorn  v.  Coles,  3  Edw.  Ch.  330.  In  De  Beauvoir  r.  De  Beauvoir,  3  House 
Lords  Cas.  524,  where  there  was  a  power  to  lay  out  money  on  land,  and  a 
blended  disposition  of  the  realty  and  personalty,  so  as  to  produce  a  con- 
version of  the  latter,  and  to  show  an  intention  to  impress  it  with  the  char- 
acter of  real  estate,  and  the  whole  was  devised  to  designated  persons  in  tail 
male,  with  a  limitation  over  to  the  testator's  right  heirs,  it  was  therefore 
held  that  the  intention  did  not  cease  with  the  failure  of  issue  male  under 
the  limitations,  so  as  to  make  the  real  estate  go  one  way  and  the  unin- 
vested personalty  another. 

The  rights  of  the  heir  are  not  affected,  in  these  respects,  by  the  fact  that 
the  produce  of  the  real  estate  is  blended  with  the  personalty  as  a  joint  fund  : 
Lindsay  v.  Pleasants,  4  Ired.  Eq.  321 ;  Wood  r.  Cone,  7  Paige  476.  In  some 
of  the  American  cases,  however,  it  has  been  held  that  where  it  appears  to 
have  been  the  testator's  intention  that  the  land  shall  change  its  character 


302  ADAMS's    DOCTRINE    OF    EQUITY. 

r*l  S<)1  ^^  ^^^®  manner,  a  conveyance  of  *real  estate  in  the 
owner's  lifetime,  on  trust  to  convert  it  into  money 
and  to  pay  the  proceeds  to  him  or  to  his  executors,  will 
not,  if  the  estate  is  unsold  at  his  death,  work  an  equitable 
conversion  in  favor  of  the  crown,  so  as  to  subject  it  to 
probate  duty.(^)^ 

To  this  extent  the  general  rule  is  clear.  But  where 
real  estate  is  devised  foe  sale,  and  its  produce,  either  alone, 
or  in  union  with  the  personal  estate,  is  constituted  a  fund 

(i)  Matson  v.  Swift,  8  Bea.  368;  Taylor  v.  Haygarth,  14  Sim.  8.     [See 
Cradock  ».  Owen,  2  Sm.  &  Giflfard  241.] 


for  all  purposes,  and  be  considered  as  personalty,  the  next  of  kin  will  be 
entitled  in  the  failure  of  any  particular  purpose  :  Craig  v.  Leslie,  3  Wheat. 
383  ;  Burr  v.  Sim,  1  Whart.  263  ;  Morrow  v.  Brenizer,  2  Rawle  185.  But 
in  England  the  rule  is  now  that  not  the  most  express  directions  in  the  will, 
as  that  the  proceeds  of  real  estate  shall  constitute  a  fund  of  personalty,  or 
the  like,  will  exclude  the  right  of  the  heir,  unless,  perhaps,  there  is  a  dis- 
tinct bequest  to  the  next  of  kin  on  the  occurrence  of  such  failure :  Taylor 
V,  Taylor,  3  De  G.,  M.  &  G.  190 ;  Robinson  v.  The  Governors,  10  Hare 
29 ;  Fitch  V.  Weber,  6  Id.  145 ;  Gordon  ».  Atkinson,  1  De  G.  &  Sm.  478  ; 
Sammons  v.  Rose,  25  L.  J.  Ch.  615 ;  20  Jurist  73. 

Though  the  undisposed  of  interest  in  land  devised  to  be  sold  for  par- 
ticular purposes  is  treated  as  land,  so  as  to  descend  to  those  who  would 
have  been  entitled  had  it  remained  unconverted,  yet  after  actual  conver- 
sion the  surplus  descends  as  money:  Pennell's  App.,  20  Penn.  St.  515; 
Whitebread  v.  Bennet,  18  Jurist  140. 

^  Where  a  settlor  conveys  real  estate  upon  trusts  for  sale,  and  directs  the 
proceeds  to  be  applied  to  certain  purposes,  some  of  which  fail,  whether  the 
sale  is  directed  in  the  lifetime  of  the  settlor  or  after  his  decease,  the  property 
will,  to  the  extent  to  which  the  purposes  fail,  result  to  the  settlor  as  personal 
estate,  Secus,  if  there  is  a  failure  of  the  whole  purposes  for  which  the  sale 
is  directed :  Clarke  v.  Franklin,  27  L.  J.  Ch.  567  ;  4  Kay  &  Johns.  257. 
In  Wilson  v.  Coles,  28  Bea.  215,  there  was  a  direction  to  sell  real  estate, 
to  invest  the  proceeds,  to  pay  the  income  thereof  to  the  testator's  wife  for 
life,  and  after  her  death  to  pay  the  principal  to  a  charity.  The  gift  to  the 
charity  failed  ;  but  it  was  held  that  there  had  been  a  conversion  out  and 
out,  that  the  testator's  heir  took  the  residue,  which  remained  undisposed 
by  reason  of  the  failure  of  the  gift  to  the  charity,  as  personalty,  and  that 
as  such  it  passed  to  hie  personal  representatives,  and  not  to  his  heir-at-law. 


OF    CONV.ERSION,    ETC.  303 

for  particular  payments,  a  contention  sometimes  arises  as 
to  the  purpose  really  in  view;  viz.,  whether  it  was  con- 
fined to  those  particular  payments,  or  extended  to  a  total 
change  of  character,  so  that  the  surplus  may  be  liable  as 
personal  assets  to  creditors,  may  pass  to  a  legatee  of  the 
personal  residue,  and  may  have  the  benefit  of  augmenta- 
tion by  lapse,  independently  of  the  enactment  of  1  Vict, 
c.  26.  The  prima  facie  construction  is  in  favor  of  the  more 
limited  view;  but  if  the  will  shows  an  intention  to  con- 
vert quoad  the  ulterior  object,  there  is  no  reason  to  con- 
fine its  effect.  The  question,  however,  is  one  of  construc- 
tion only,  and  it  is  sufficient  here  to  notice  that  it  exists,  {ky 
The  circumstance  that  the  conversion  has  been  de  facto 
made,  is  immaterial  in  determining  who  is  entitled  to  the 
surplus.  But  the  necessity  of  such  conversion  for  the 
other  purposes  of  the  gift,  may  be  material  in  determining 
in  what  character  the  party  takes.     The  former  question 

{k)  1  Jarm.  on  Wills,  c.  xix,  ss.  4  &  5 ;  Amphlett  v.  Parke,  1  Sim.  275 ; 
4  Ru88.  75  ;  2  R.  &  M.  221. 

^  The  heir-at-law  has  a  resulting  trust  in  land  directed  to  be  sold,  after 
debts  and  legacies  are  paid,  and  may  come  into  equity  and  restrain  the 
trustee  from  selling  more  than  is  necessary  to  pay  the  debts  and  legacies, 
or  may  offer  to  pay  them  himself,  and  pray  to  have  a  conveyance  of  a  part 
of  the  land  not  sold  in  the  first  case,  and  the  whole  in  the  latter,  which 
property  will  in  either  case  be  land  and  not  money ;  but,  if  the  intent  of 
the  testator  appears  to  be  to  stamp  upon  the  proceeds  of  lands  the  quality 
of  personalty,  not  only  for  the  particular  purposes  of  the  will,  but  to  all 
intents,  the  claim  of  the  heir-at-law  to  a  resulting  trust  is  defeated,  and  the 
estate  is  considered  to  be  personal :  Craig  ».  Leslie,  3  Wheat.  582,  583. 
See  also  Burr  ».  Sim,  1  Whart.  252 ;  Pratt  v.  Taliaferro,  3  Leigh  419 ; 
Wright  V.  Trustees  of  Methodist  Episcopal  Church,  1  Hoff.  Ch  205  ;  Mor- 
row V.  Brenizer,  2  Rawle  185 ;  but  see  note  to  previous  page. 

Equity  will  extend  the  same  privilege  to  the  residuary  legatees  which  is 
allowed  to  the  heir,  viz.,  to  pay  debts  and  legacies,  and  call  for  a  convey- 
ance of  the  real  estate,  or  to  restrain  the  trustee  from  selling  more  than  is 
necessary  to  pay  debts  and  legacies :  Craig  v.  Leslie,  ubi  supra. 


304  ADAMS's    DOCTRINE    OF    EQUITY. 

depends  on  the  original  character  of  the  property;  the 
latter  on  the  character  which  at  the  time  of  his  taking  it 
has  been  impressed  on  it  by  the  creator  of  the  trust.  The 
test,  therefore,  by  which  the  question  should  be  tried,  is 
the  inquiry  whether  the  effective  trusts  do  or  do  not  require 
the  conversion  to  be  made.  If  they  do  require  it,  the  un- 
disposed-of  interest  will  be  held  by  him  in  its  converted 
character;  if  they  do  not,  in  its  original  one.  Let  us,  for 
r*14-m  ^^^'^P^^?  assume  that  land  is  devised  on  trust  *to 
sell,  and  to  divide  the  proceeds  between  A.  and 
B.  A  dies  in  the  testator's  lifetime;  B.  survives  him.  In 
this  case,  there  is  a  resulting  trust  of  A.'s  moiety  for  the 
heir;  but  a  sale  for  convenience  of  division  is  just  as 
necessary  between  B.  and  the  heir,  as  it  was  between  A. 
and  B.  The  execution  of  the  trust  therefore  requires  a 
sale,  although  its  purposes  do  not  exhaust  the  proceeds; 
and,  accordingly,  the  heir  will  take  his  share  as  money; 
and  if  he  die  without  altering  its  destination,  it  will  go  to 
his  executor  and  not  to  his  heir.  If,  on  the  contrary,  both 
A.  and  B.  die  in  the  testator's  lifetime,  there  is  a  resulting 
trust  of  the  entirety  for  the  heir.  A  sale,  therefore,  is  no 
longer  wanted;  the  heir  will  take  the  estate  as  land;  and 
on  his  death  it  will  devolve  on  his  heir.  (/) 

We  will  next  consider  the  doctrine  of  conversion  in  its 
operation  under  contracts.^ 

{I)  Smith  V.  Claxton,  4  Madd.  484  ;  Jessopp  v.  Watson,  1  M.  &  K.  6G5 ; 
Hereford  v.  Ravenhill,  5  Bea.  51. 

^  The  rules  as  to  conversion  apply  to  agreements  between  parties  to  a 
sale  for  the  purposes  of  division  :  Hardy  v.  Hawkshavr,  12  Bea.  552  ;  Na- 
glee  V.  Ingersoll,  7  Penn.  St.  197.  Or  to  a  conveyance  for  the  benefit  of 
creditors  on  trusts  for  sale  :  Griffiths  v.  Ricketts,  7  Hare  299.  An  infant's 
share  in  the  proceeds  of  realty  sold  under  proceedings  in  partition,  will  be 
treated  as  real  estate  until  he  comes  of  age  :  Bateman  v.  Latham,  8  Jones 
Eq.  35. 


OP    CONVERSION,    ETC.  305 

The  rule  in  respect  to  contracts  is,  that  if  a  binding 
contract  be  made  for  the  sale  of  land,  enforceable  in  equity, 
such  contract,  though  in  fact  unexecuted,  is  considered 
as  performed ;  so  that  the  land  becomes  in  equity  the 
property  of  the  vendee,  and  the  purchase-money  that  of 
the  vendor.  The  vendee,  therefore,  is  entitled  to  the  rents 
from  the  day  named  for  completion,  or,  if  a  good  title  be 
not  then  shown,  from  the  day  when  such  title  was  first 
shown ;  and  he  must  bear  any  loss,  and  will  be  entitled 
to  any  benefit  occurring  between  the  contract  and  the  con- 
veyance. And,  vice  versa,  the  vendor  is  entitled  to  inter- 
est from  the  same  time,  if  the  purchase-money  be  not  paid 
unless  such  non-pajonent  originate  in  his  own  fault,  (w) 
On  the  same  principle,  if  either  party  die  before  comple- 
tion, the  equitable  right  to  the  land  or  purchase-money 
will  devolve  as  real  or  personal  estate.  On  the  death  of 
the  vendee  it  will  pass  to  the  devisee  or  heir ;  who  will 
be  entitled  to  have  the  price  paid  out  of  the  personalty, 
or,  if  the  contract  be  rescinded  after  the  death,  r^n^i-i 
*will  be  entitled  to  the  purchase-mon ey  instead,  (w) 
On  the  death  of  the  vendor  it  will  pass  to  his  executor, 
for  whom  the  devisee  or  heir  will  be  a  trustee,  (o) 

In  the  case  of  contracts,  as  in  that  of  trusts,  it  is  essen- 
tial that  the  contract  be  a  binding  one,  and  that  the  object 
of  the  conversion  be  within  its  scope.^ 

(m)  1  Sug.  V.  &  P.  c.  iv.,  8.  1 ;  c.  vi.,  8.  2 ;  3  Sug.  V.  &  P.  c.  xvi.,  8.  1. 
(n)  Broome  v.  Monck,  10  Ves.  597. 

(o)  Knollys  v.  Shepherd,  cited  IJ.  &  W.  499  ;  1  Jarm.  on  Wills  147  ; 
1  Sug.  V.  &  P.  291 ;  Lumsden  v.  Frazer,  12  Sim.  263. 

'  See  ante,  note  p.  136,  upon  the  subject  of  equitable  conversion  gener- 
ally, and  also  Story's  Eq.  Jurisprudence,  ss.  790-793,  and  ss,  1212-1214  ; 
Henson  v.  Ott,  7  Ind.  512.  An  equitable  conversion  occurs  though  the 
election  to  purchase  rests  entirely  with  the  vendee  :  Collingwood  v.  Row, 
26  L.  J.  Ch.  649 ;  Kerr  v.  Day,  14  Penn.  St.  112.  If  there  be  a  rescission 
20 


306  ADAMS's    DOCTRINE    OF    EQUITY. 

The  first  essential  is  that  the  contract  be  binding,  and 
such  as  the  Court  will  specifically  execute. 

If,  therefore,  the  vendee  die  before  completion  of  the 
contract,  and  the  contract  be  one  which,  either  from  defect 
in  the  title  or  for  any  other  reason,  was  not  obligatory  on 
him  at  his  decease,  the  heir  or  general  devisee  of  realty 
cannot  require  that  the  executor  shall  complete  the  pur- 
chase. If,  however,  it  were  binding  on  the  deceased  con- 
tractor, it  is  immaterial  that  it  was  optional  with  the  other 
party.  When  there  is  an  option,  if  it  be  declared  against 
the  contract,  the  property  will  go  according  to  its  original 
character,  and  so  long  as  the  option  is  undeclared,  the 
intermediate  interest  will  follow  the  same  course ;  but 
when  the  option  is  made  in  favor  of  enforcing  the  contract, 
the  conversion  will  take  effect  from  the  date  of  its  being 
declared,  (jo) 

The  second  essential  is  that  the  object  for  which  con- 
version is  assumed  be  within  the  scope  of  the  contract. 

There  is  no  equity  for  assuming  a  conversion  in  favor 
of  or  against  any  person  who  is  not  a  party  to  the  con- 
tract.^ 

{p)  Broome  v.  Monck,  10  Ves.  595;  Rose  v.  Cunynghame,  11  Id.  550  ; 
Townley  v.  Bedwell,  14  Id.  591 ;  1  Jarra.  on  Wills  49. 

after  the  death  of  the  vendor  it  amounts  to  a  reconversion  into  land,  and 
his  distributees,  who  would  be  entitled  to  the  money,  will  take  the  land 
instead  :  Leiper's  Ex'rs.  v.  Irvine,  26  Penn.  St.  54.  An  interest  in  a  con- 
tract for  the  purchase  of  land  descends  on  the  heirs  of  the  purchaser;  his 
administrator  must  account  to  them  for  the  rents,  or  for  moneys  derived 
from  sales  :  Griffith  v.  Beecher,  10  Barb.  S.  C.  432.  So,  on  the  other  hand, 
the  interest  of  the  vendor  is  held  by  the  heir  in  trust  for  the  next  of  kin, 
and  if  the  land  is  recovered  back  in  ejectment,  it  is  still  held  as  personalty  : 
Rose  V.  Jessup,  19  Penn.  St.  280. 

A  devise  of  lands  is  revoked  by  an  agreement  to  sell  in  the  devisor's 
life,  and  the  purchase-money  passes  not  to  the  devisee,  but  tlie  residuary 
legatee  :  Donohoo  v.  Lea,  1  Swan  (Tenn.)  119. 

^  Equitable  conversion  by  a  contract  of  sale,  does  not  affect  the  rights  of 


OF    CONVERSION,    ETC.  307 

It  was  at  one  time  supposed  that  when  an  equitable 
interest  had  been  acquired  in  leasehold  property  by  a 
deposit  of  the  lease  for  securing  a  debt,  or  by  any  other 
contract  in  the  nature  of  an  assignment,  the  contract  was 
not  only  binding  as  between  the  intermediate  parties,  but 
that  the  landlord  had  a  right  to  treat  it  as  executed,  and 
to  proceed  in  equity  against  the  assignee.  A  case  might 
certainly  *occur  in  which  the  person  having  the  r-^^  i^-, 
equitable  right  might  so  conduct  himself  as  to 
raise  an  equity  in  favor  of  the  landlord,  but  it  is  decided 
that  the  mere  existence  of  the  contract  cannot  confer  on 
the  landlord  any  equity  to  interfere.  (§')  It  has  also  been 
contended  that  a  husband's  assignment  of  his  wife's  choses 
in^  action  should  exclude  the  wife's  right  by  survivorship, 
on  the  ground  that  such  an  assignment  implies  a  contract 
to  reduce  the  chose  into  possession,  and  is  equivalent  in 
equity  to  such  reduction.  This  proposition  was  first  over- 
ruled in  respect  to  bankruptcy,  and  it  was  decided  that 
whatever  might  be  the  rights  of  purchasers  for  value,  the 
assignees  in  bankruptcy  were  entitled  to  no  such  equity. 
It  was  next  overruled  with  respect  to  all  assignments, 
although  for  valuable  consideration,  if  the  chose  were  re- 
versionary, and  therefore  incapable  of  present  possession ; 
leaving  the  question  still  open,  whether,  if  it  were  capable 
of  immediate  possession  or  become  so  during  the  cover- 
ture, the  wife  should  be  excluded.  The  principle  is  now 
extended  to  all  cases  ;  and  it  is  held  that,  although  the 
husband's  contract  for  value  may,  as  between  himself  and 

(j)  Moores  r.  Choat,  8  Sim.  508;  Close  ».  Wilberforce,  1  Bea.  112; 
Robinson  v.  Kosher,  1  You.  &  Coll.  N.  C.  C.  7. 

-  _ 

the  creditors  of  the  vendor:  Leiper's  Ex.  v.  Irvine,  26  Penn.  St.  54.  The 
rights  of  the  widow  and  distributees  in  the  fund  are  not  changed  by  the 
reconversion  :  Leiper's  Appeal,  35  Penn.  St.  420. 


308  ADAMS'S    DOeTBINE    OF    EQUITY. 

the  assignee,  be  equivalent  to  a  reduction  into  possession, 
yet  as  against  the  wife,  who  is  no  party  to  the  contract, 
it  cannot  have  that  effect,  (r)^ 

On  an  analogous  principle  to  that  of  conversion,  it  is 
held  that  where  property  subject  to  a  trust  has  been  un- 
duly changed,  the  substituted  property  is  bound  by  the 
incidents  of  that  which  it  represents.^  If,  therefore,  the 
guardian  or  trustee  of  an  infant  invest  his  personal  estate 
in  land  without  authority  for  so  doing,  the  land  will  be 
affected  in  equity  as  personal  estate,  and  will  pass  to  the 
administrator  on  the  infant's  death.^  Or  again,  if  timber 
be  cut  by  a  guardian  or  trustee  on  the  estate  of  an  infant 
tenant  in  fee,  the  proceeds  will  be  realty,  and  will  go  to 
r*14.^1  ^^®  *heir;  it  is  otherwise  if  the  infant  be  tenant 
in  tail,  for  the  conversion  into  personalty  is  then 
palpably  for  his  benefit,  and  the  act  ceases  to  be  a  breach 
of  trust.  If  the  timber  is  blown  down  by  accident,  or  is 
cut  down  by  a  stranger  tortiously,  or  if  the  act  of  the 
guardian  or  trustee  is  authorized  by  the  Court,  there  is 
no  breach  of  trust,  and  therefore  no  equity,  (s) 

In  like  manner,  if  an  estate  or  fund  has  been  changed 
by  breach  of  trust,  the  cestui  que  trust  may,  at  his  option, 
waive  its  restoration,  and  may  attach  and  follow  it  in  its 
altered  form,  e.  g.,  if  a  trustee  or  executor  purchase  an 
estate  with  his  trust-money  or  assets,  and  the  fact  of  his 

(r)  Ashby  v.  Ashby,  1  Coll.  553  ;  Rees  v.  Keith,  11  Sim.  388  ;  Ellison  v. 
Elwih,  13  Sim.  309 ;  Burnham  v.  Bennett,  2  Coll.  254. 

(»)  Tullit  V.  TuUit,  Amb.  370  ;  Witter  v.  Witter,  3  P.  W.  99  ;  Pierson  v. 
Shore,  1  Atk.  480 ;  Ex  parte  Bromfield,  1  Ves.  J.  453 ;  3  B.  C.  C.  510 ; 
Oxenden  v.  Lord  Compton,  2  Ves.  J.  69. 

^  See,  however,  in  the  United  States,  note  to  Hill  on  Trustees,  p.  642, 
4th  Am.  ed. 

^  See  Philips  v.  Crammond,  2  W.  C.  C._R.  441;  and  note,  ante,  page  33. 
'  Collins  V.  Champ's  Heirs,  15  B.  Monr.  118. 


OP    CONVERSION,     ETC.  309 

having  done  so  be  admitted  or  distinctly  proved,  the  par- 
ties interested  in  the  money  may  claim  the  estate,  or  if 
the  purchase  be  made,  partly  out  of  the  trust  fund  and 
partly  out  of  the  trustee's  own  property,  they  may  claim 
a  lien  for  the  amount  misapplied.  It  is  essential,  how- 
ever, that  the  one  property  shall  have  been  produced  by 
the  other ;  and  therefore  the  doctrine  wiU  not  apply  if 
the  estate  be  purchased  with  borrowed  money,  and  a 
trust  fund  misapplied  in  payment  of  the  debt.  The  prin- 
ciple of  this  doctrine  is  identical  with  that  which  origi- 
nates a  resulting  trust,  that  when  one  man  pays  for  an 
estate  and  has  it  conveyed  to  another,  the  grantee,  who 
has  the  legal  estate,  is  a  trustee  by  operation  of  law  for 
the  purchaser.  K  a  trust  fund  be  applied  in  paying  for 
the  estate,  and  the  cestui  que  trust  affirms  the  purchase,  it 
becomes  a  purchase  with  his  money,  and  entitles  him  to 
the  estate.  It  is  therefore  unnecessary  that  the  trust 
should  be  evidenced  in  writing,  notwithstanding  that  the 
claim  may  be  fox  real  estate.  But  the  application  of  the 
trust  fund  must  be  admitted  by  the  answer  or  proved  by 
convincing  evidence.  And  unless  there  be  corroborating 
circumstances,  such  as  a  written  account  by  the  trustee 
showing  how  the  *money  was  used,  or  a  clear  r^-i^i-i 
inability  in  him  to  make  the  purchase  with  other 
funds,  mere  parol  evidence  of  declarations  supposed  to  be 
made  by  him  will  be  received  with  great  caution.  (^)^ 

{<)  Lane  v.  Dighton,  Amb.  409 ;  Lewis  v.  Maddocks,  8  Ves.  150 ;  17  Id. 
48  ;  Denton  v.  Davis,  18  Id.  499 ;  Taylor  v.  Plumer,  3  M.  &  S.  575 ;  Lench 
V.  Lench,  10  Ves.  511 ;  Wilkins  v.  Stevens,  1  You.  &  Coll.  V.-C.  C.  431 ;  3 
Sug.  V.  «Sk  P.  c.  XX.,  8.  3  and  4. 

^  See  Murray  v.  Lylburn,  2  John.  Ch.  442  ;  and  note,  page  33  :  Olds  v. 
Cummings,  31  111.  188 ;  Pryor  v.  Wood,  31  Penn.  St.  142.  See  also.  May 
V.  Le  Claire,  11  AVall.  (U.  S.)  217. 


310  ADAMS's    DOCTRINE    OF    EQUITY. 

The  same  rule  has  been  applied  where  a  contract  had 
been  rescinded  upon  the  ground  of  fraud,  and  the  pur- 
chase-money had  been  traced  to  a  subsequent  investment. 
It  was  held  that  where  a  contract  is  avoided  on  the  ground 
of  fraud,  no  property  delivered  under  it  passes  from  the 
owner;  that  the  money,  therefore,  which  had  been  paid 
still  belonged  to  the  vendee,  who  had  paid  it ;  and  that 
inasmuch  as  the  money  thus  obtained  by  fraud,  had  been 
laid  out  in  the  purchase  of  stock  which  was  traced  and 
identified,  the  person  on  whom  the  fraud  has  been  prac- 
tised was  entitled  to  an  injunction  against  its  sale  or  as- 
signment. It  does  not  appear  to  have  been  contended, 
that  this  principle  could  be  resisted  in  the  case  of  a  mere 
naked  fraud,  which  vitiates  a  contract  both  at  law  and  in 
equity.  But  it  was  argued  by  Sir  Edward  Sugden,  on 
behalf  of  the  defendant,  that  its  application  was  not  jus- 
tified where  the  contract  was  rescinded  on  the  ground  of 
what  may  be  called  fraud  in  equity,  rather  than  for  abso- 
lute legal  nullity.  The  distinction  did  not  prevail  with 
the  Court;  but  it  is  still  considered  by  Sir  Edward  Sug- 
den that,  in  the  event  of  an  appeal,  the  decree  could 
hardly  have  been  maintained,  (if) ^ 

(tt)  Small  V.  Attwood,  Younge  507  ;  1  Sug,  V.  &  P.  400. 

'  The  doctrine  of  conversion  applies  to  a  legislative  direction  for  a  sale  : 
Snowhill  V.  Snowhill,  2  Green  Ch.  20 ;  see  In  re  Arnold,  32  Beav.  591  ;  Dixie 
V.  Wright,  Id.  662.  The  same  principle  has  been  applied  in  the  working  of 
the  Act  of  Parliament  for  the  emancipation  of  negroes  in  the  West  Indies, 
there  treated  as  realty,  giving  compensation  to  the  owners  thereof:  Richards 
V.  Att.-Gen.  of  Jamaica,  6  Moore  Priv.  Coun.  Gas.  381.  But  in  England 
it  has  been  held  that  money  paid  into  court  for  land  taken  under  the  com- 
pulsory powers  of  an  Act  of  Parliament,  was  to  be  treated  as  realty :  Re 
Horner's  Est.,  5  De  G.  &  Sm.  483 ;  Re  Steward's  Est.,  1  Drew.  636 ;  Re 
Stewart,  1  Sm.  &  Giff.  39 ;  Taylor's  Settlement,  9  Hare  596 ;  but  see  Ex 
parte  Hawkins,  J  3  Sim.  569;  Ex  parte  Flamank,  1  Sim.  N.  S.  260.  See 
also,  Bank  of  Auburn  v.  Roberts,  45  Barb.  419. 


OF    PRIORITIES,    ETC,  311 

The  doctrine  of  conversion,  by  changing  the  character  of 
trusts  and  contracts,  and  altering  them  from  mere  rights 
of  action  into  actual  though  imperfect  titles  in  equity, 
gives  rise  to  questions  between  them  and  the  legal  title, 
and  also  to  questions  between  conflicting  equities,  where 
several  have  been  created  in  reference  to  the  same  p^-. ,  r-i 
*thing.  It  therefore  becomes  necessary  to  consi- 
der the  principle  which  determines  the  priority  between 
such  conflicting  claims. 

The  rule  of  priority  in  regard  to  transfers  and  charges 
of  the  legal  estate,  whether  made  spontaneously  by  a  con- 
veyance, or  compulsorily  by  a  judgment  at  law,  is  that 
the  order  of  date  prevails.  Conveyances  take  place  from 
the  date  of  the  conveyance;  judgments  against  realty 
from  the  date  of  the  judgment;  and  judgments  against 
personalty  from  the  delivery  of  the  writ;  nor  does  the 
mere  absence  of  valuable  consideration  aff'ect  the  priority, 
except  where  it  is  provided  otherwise  by  statute.  There 
are,  however,  several  statutes  which  have  this  effect, 
viz.,  the  statute  of  27  Eliz.  c.  4,  by  which  certain  grants 
of  real  estate  are  avoided  as  against  subsequent  pur- 
chasers ;  that  of  Eliz.  c.  5,  by  which  certain  grants  either 
of  real  or  personal  estate  are  avoided  against  creditors ; 
and  the  Statutes  of  Bankruptcy  and  Insolvency,  by  which 
certain  grants  made  by  a  bankrupt  or  insolvent  are 
avoided  as  against  his  assignees.^ 

*  The  subject  of  conveyances  of  land  and  chattels  in  fraud  of  purchasers 
or  creditors,  upon  which  there  is  a  very  considerable  diversity  of  decision 
and  legislation  in  the  different  states,  will  be  found  discussed  very  fully, 
and  with  remarkable  ability,  in  the  notes  to  Sexton  r.  Wheaton,  1  Am. 
Lead.  Cas.  17 :  and  to  Twyne's  Case,  1  Smith  Lead.  Cas.  33,  6th  Am.  ed., 
by  the  late  Mr.  Wallace.  By  Act  of  Congress  of  March  2d,  1867,  to 
"  Establish  a  uniform  system  of  Bankruptcy  throughout  the  United  States," 
certain  conveyances  by  persons  in  contemplation  of  bankruptcy  and  with 
an  intention  to  defeat  the  operation  of  that  act,  are  declared  void.     The 


312  ADAMS's     DOCTKINE    OF    EQUITY. 

By  the  statute  of  27  Eliz.  c.  4,  it  is  enacted,  that  con- 
veyances, grants,  &c.,  of  or  out  of  any  lands  or  heredita- 
ments had  or  made  of  purpose  to  defraud  and  deceive 
such  persons  as  shall  purchase  the  same  lands  or  heredita- 
ments, or  any  rent,  profit,  or  commodity  out  of  the  same, 
shall  be  deemed  and  taken,  only  as  against  such  persons 
and  their  representatives  as  shall  so  purchase  the  same 
for  money  or  other  good  consideration,  to  be  utterly  void. 
And  further,  that  if  any  person  shall  make  a  conveyance 
of  lands  or  hereditaments,  with  a  clause  of  revocation  at 
his  pleasure,  and  shall  afterwards  sell  the  same  lands  or 
hereditaments  for  money  or  other  good  consideration, 
without  first  revoking  the  prior  conveyance,  then  the 
prior  conveyance  shall  be  void  as  against  the  vendee. 

A  conveyance  may  be  rendered  voidable  under  this 
act  in  three  ways  :  viz..  First,  if  it  be  designedly  fraudu- 
lent ;  and  in  this  case  it  may  be  avoided  by  a  subsequent 
r*14.fi1  conveyance  *from  the  heir  of  the  grantor,^  as 
well  as  by  one  from  the  grantor  himself.  («;)  Sec- 
ondly, if  it  contain  a  power  of  revocation,  (w^)  And 
thirdly,  if  it  be  made  without  valuable  consideration,  and 
followed  by  a  conveyance  or  contract  for  value  by  the 
grantor.     For  it  has  been  held  that  a  voluntary  grant, 

[v]  Barrel's  Case,  6  Rep.  72;  3  Sug.  V.  &  P.  282. 
(w)  3  Sug.  y.  &  P.  307. 

assignee  in  bankruptcy  is  entitled  to  recover  the  property  thus  improperly 
disposedof  from  the  person  to  whom  it  has  been  transferred;  and  in  cer- 
tain cases,  as  where  there  has  been  collusion  between  the  bankrupt  and 
the  transferree,  the  latter,  if  a  creditor,  loses  his  right  to  prove  his  debt 
against  the  estate. 

^  This  has  been  overruled  in  England  by  the  recent  case  of  Doe  d.  New- 
man V.  Rusham,  17  Q.  B.  (79  E.  C.  L.  R.)  723  ;  and  Burrel's  Case  shown 
not  to  support  the  proposition  for  which  it  is  usually  cited.  See  also,  Doe 
V.  Lewis,  11  C.  B.  (73  E.  C.  L.  R.)  1035. 


OF    PRIORITIES,     ETC.  313 

coupled  with  such  subsequent  conveyance  or  contract,  is 
sufficient  to  establish  fraud  as  a  conclusion  of  law.  (x)  But 
the  grant  may  cease  to  be  voluntary  by  matter  ex  post 
facto,  and  be  thus  made  good  against  a  subsequent  pur- 
chaser, e.  (/.,  if  there  be  a  subsequent  conveyance  from 
the  volunteer  to  a  purchaser  for  value.  (^)  If  the  grant 
be  voluntary  in  part,  it  will  be  voidable  to  that  extent, 
e.  g.,  if  it  be  made  in  consideration  of  marriage,  and  there 
be  an  ultimate  remainder  to  the  brothers  of  the  settlor, 
the  marriage  will  not  per  se  support  that  remainder,  and  it 
may  be  set  aside  by  the  purchaser.  (^)  The  grant  when 
made  cannot  be  recalled  by  the  grantor,  but  he  will  not 
be  restrained  from  defeating  it  by  a  sale,  (a)  When  a 
lond  fide  sale  for  value  has  been  made,  the  purchaser  may 
set  aside  the  prior  grant,  and  his  hona  fides  will  not  be 
affected  by  notice  of  \i.{hy  If  he  claims  under  an  exe- 
cuted conveyance,  the  prior  grant  wiU  be  invalid  at  law ; 
if  under  an  executory  contract,  he  may  insist  on  a  specific 
performance  in  equity ;  but  it  cannot  be  enforced  against 
him  at  the  suit  of  the  vendor,  {c) 

(x)  Doe  V.  Manning,  9  East  59 ;  Pulvertoft  v.  Pulvertoft,  18  Ves.  84 ;  3 
Sug.  V.  &  P.  286,  et  seq. 

[y)  Prodgers  v.  Langham,  1  Sid.  133 :  George  v.  Milbanke,  9  Ves.  190 ; 
Brown  v.  Carter,  5  Ves.  862 ;  3  Sug.  V.  &  P.  297. 

(z)  Johnson  v.  Legard,  6  M.  &  S.  60 ;  T.  &  R.  281 ;  Doe  v.  Rolfe,  8  A.  & 
E.  650  (35  E.  C.  L.  R.) ;  Davenport  v.  Bishopp,  2  N.  C.  C.  451. 

(a)  Petre  v.  Espinasse,  2  M.  &  K.  496  ;  Pulvertoft  v.  Pulvertoft,  18  Ves. 
84. 

(6)  Gooch's  Case,  5  Rep.  60  a. ;  Pulvertoft  v.  Pulvertoft,  18  Ves.  84 ; 
Buckle  V.  Mitchell,  18  Id.  100. 

(c)  Buckle  V.  Mitchell,  18  Ves.  100 ;  Metcalfe  r.  Pulvertoft,  1  Ves.  &  B. 
180  ;  Smith  v.  Garland,  2  Meriv.  123 ;  Johnson  v.  Legard,  T.  &  R.  281 ;  3 
Sug.  V.  &  P.  305 ;  Willats  v.  Busby,  12  Law  Jur.  N.  S.  105  ;  3  Sug.  V.  & 
P.  300,  et  seq. 

^  A  different  rule  obtains  in  many  of  the  United  States :  Note  to  Sexton 
V.  Wheaton,  1  Am.  Lead.  Cas.  36,  4th  Am.  ed. 


314  ADAMS'S    DOCTRINE    OF    EQUITY. 

r*1471  ^"^^  ^^  statute  of  13  Eliz.  c.  5,  it  is  enacted, 
that  all  conveyances,  grants,  &c.,  of  any  lands, 
hereditaments,  goods,  or  chattels,  had  or  made  of  purpose 
to  delay  or  defraud  creditors  and  others  of  their  actions 
or  debts,  shall  be  taken,  only  as  against  such  persons  and 
their  representatives  as  shall  or  might  be  so  (ielayed  or 
defrauded,  to  be  utterly  void ;  provided  that  the  act  shall 
not  extend  to  any  conveyance  or  assurance  made  on  good 
consideration  and  hond  fide  to  a  person  not  having  notice 
of  such  fraud. 

The  provisions  of  this  statute,  like  those  of  the  statute 
in  favor  of  purchasers,^  invalidate  all  conveyances  and  as- 
signments made  with  a  fraudulent  design ;  {d)  but  they  do 
not  affect  mere  voluntary  gifts,  although  the  donor  may 
afterwards  become  indebted  \  for  he  may  fairly  intend  to 
give  away  his  property ;  and  if  he  were  never  allowed 
to  do  so  effectively,  it  would  produce  mischiefs  equally 
great  with  those  which  the  act  was  intended  to  prevent. 
If,  however,  the  party  making  a  voluntary  gift  is  deeply 
indebted  at  the  time,  it  affords  presumptive  evidence  that 
it  was  meant  to  defeat  his  creditors.^  If  the  amount  given 
constitutes  a  large  proportion  of  his  estate,  it  increases  the 
probability  of  such  intent ;  and  if  he  is  in  a  state  of  actual 
insolvency,  it  appears  to  be  conclusive  evidence  of  fraud. 
The  presumption,  however,  does  not  arise  except  in  favor 
of  persons  who  were  creditors  when  the  gift  was  made.^ 

(d)  Twyne's  Case,  3  Rep.  80. 

^  See  Danbury  «.  Robinson,  1  McCart.  213. 

*  As  to  the  extent  of  indebtedness  which  will  render  a  voluntary  con- 
veyance fraudulent  as  to  creditors,  the  decisions  in  the  United  States  are 
not  uniform.     See  note  to  Sexton  v.  Wheaton,  ut  supr. 

'  See  McLane  v.  Johnson,  43  Verm.  48. 


OF    PRIORITIES,    ETC.  315 

But  if  the  gift  is  set  aside  by  them,  the  subsequent  cred- 
itors will  be  let  in  to  partake  of  the  fund,  {e) 

In  order  to  invalidate  a  gift  under  this  statute,  the  pro- 
perty must  be  of  a  kind  to  which  the  creditors  can  resort 
for  payment ;  for  otherwise  they  are  not  prejudiced  by 
the  *gift.  For  this  reason,  if  relief  be  asked  in  r*-i4Q-i 
the  lifetime  of  the  debtor,  the  creditor  must  ob- 
tain judgment  for  his  debt,  and  the  property  must  be 
such  as  can  be  taken  in  execution.  It  was,  therefore, 
formerly  held,  that  during  the  debtor's  lifetime,  and  so 
long  as  he  was  not  bankrupt  or  insolvent,  an  assignment 
of  a  chose  in  action  could  not  be  set  aside ;  but  that  it 
was  otherwise  on  his  bankruptcy,  insolvency,  or  death, 
because  the  creditors  might  then  reach  all  his  personal 
property.  It  may  be  presumed  that  the  same  result  will 
follow  from  the  provisions  of  1  &  2  Vict.  c.  110.  (/) 

The  effect  of  bankruptcy,  or  of  a  discharge  under  the 
insolvent  acts,  in  avoiding  prior  conveyances  by  the  bank- 
rupt or  insolvent,  is  dependent  on  peculiar  principles  and 
enactments,  and  is  foreign  to  our  present  subject. 

The  rule  of  priority  which  governs  transfers  and  charges 
of  a  legal  estate,  governs  also,  in  the  absence  of  a  special 
equity,  transfers  and  charges  of  an  equitable  interest.* 
But  if  legal  and  equitable  titles  conflict,  or  if,  in  the  ab- 
sence of  a  legal  title,  there  is  a  perfect  equitable  title  by 
conveyance  on  the  one  hand,  and  an  imperfect  one  by 

(e)  Cadogan  v.  Kennett,  Cowp.  432  ;  Kidney  v.  Coussmaker,  12  Ves.  136  , 
Richardson  v.  Smallwood,  Jac.  552 ;  Holloway  v.  Millard,  1  Mad.  414  ; 
Townsend  v.  Westacott,  2  Bea.  340  ;  Ede  v.  Knowles,  2  N.  C.  C.  172,  178  ; 
Norcutt  V.  Dodd,  Cr.  &  P.  100 ;  1  Story  on  Eq.  Jur.  s.  355,  et  seq. 

(/)  Colmun  V.  Croker,  1  Ves.  Jr.  160 ;  Dundas  v.  Dutens,  Id.  196 ;  Nor- 
cutt V.  Dodd,  1  Cr.  &  P.  100  ;  Story  on  Eq.  s.  366,  et  seq. 

»  See  Cory  r.  Eyre,  1  De  G.,  J.  &  Sm.  167. 


316  ADAMS'S    DOCTRINE     OF    EQUITY. 

contract  on  the  other,  a  new  principle  is  introduced,  and 
priority  is  given  to  the  legal  title,  or,  if  there  is  no  legal 
title,  to  the  perfect  equitable  one.  This  doctrine  is  em- 
bodied in  the  maxim,  that  "between  equal  equities  the 
law  will  prevail;" 

In  order,  however,  that  this  maxim  may  operate,  it  is 
essential  that  the  equities  be  equal.  If  they  are  unequal, 
the  superior  equity  will  prevail;  and  such  superiority 
may  be  acquired  under  any  of  the  three  following  rules: 

1.  The  equity  under  a  trust  or  a  contract  in  rem,  is 
superior  to  that  under  a  voluntary  gift,  or  under  a  lien  by 
judgment. 

2.  The  equity  of  a  party  who  has  been  misled,  is 
superior  to  his  who  has  wilfully  misled  him. 

3.  A  party  taking  with  notice  of  an  equity,  takes  sub- 
ject to  that  equity. 

r*14.Q1  *The  first  of  these  rules  is,  that  the  equity 
under  a  trust  or  a  contract  in  rem,  is  superior  to 
that  under  a  voluntary  gift,  or  under  a  lien  by  judgment. 
The  principle  on  which  this  doctrine  rests  is,  that  the 
claimant  under  a  trust  or  contract  in  rem,  has  acquired  an 
equity  to  the  specific  thing  which  binds  the  conscience  of 
the  original  holder,  whilst  the  voluntary  donee  has  no 
right  of  his  own,  but  is  entitled  only  to  that  which  his 
donor  could  honestly  give;^  and  even  the  judgment  cred- 
itor, though  he  has  in  some  sense  given  a  consideration, 
has  not  advanced  his  money  on  the  specific  security, 
and  is  entitled  to  his  debtor's  real  interest  alone,  viz., 
his  interest,  subject  to  his  equities  as  they  existed 
at  the  date  of  the  judgment.^     In  accordance  with  this 

'  See  Green  ».  Givan,  33  N.  Y.  343. 

*  The  rule  is  the  same  in  the  United  States  generally,  in  the  absence  of 
•tatutory  regulation  :  Note  to  Basset  v.  Nosworthy,  2  Lead.  Cas.  Eq.  1. 


OF    PRIORITIES,    ETC.  317 

principle,  it  has  been  decided  that  the  rights  of  a  cestui 
que  trust,  of  a  purchaser  for  value  by  imperfect  conveyance 
or  executory  contract,  and  of  a  mortgagee  by  deposit  of 
deeds,  have  priority  over  a  judgment  of  a  later  date, 
against  the  trustee,  vendor,  or  mortgagor,  notwithstanding 
that  by  means  of  an  elegit,  the  judgment  may  have  been 
clothed  with  the  legal  estate.  (^)  Nor  is  this  doctrine 
affected  by  the  late  statute,  transforming  a  judgment  into 
a  charge  by  contract.  For  the  statute  treats  the  legal 
estate  as  separate  from  the  equitable  interest,  and  makes 
each  of  them  subject  to  the  judgments  against  their  re- 
spective owners.  When,  therefore,  it  is  enacted  that  the 
judgment  shall  operate  as  a  charge  on  the  estate,  it  means 
a  charge  on  the  beneficial  estate  of  the  debtor.  If  he  has 
a  legal  estate,  subject  to  an  equity,  it  will  be  a  charge  on 
the  estate  subject  to  the  same  equity.  If  he  has  an 
equitable  interest,  it  will  be  a  charge  on  that  interest,  (h) 

The  second  rule  of  superior  equity  is,  that  "the  equity 
*of  a  party  who  has  been  misled,  is  superior  to  p^^  r^-i 
his  who  has  wilfully  misled  him." 

This  rule  is,  in  fact,  merely  a  specific  application  of  the 
general  doctrine  of  law  with  respect  to  fraud,  where  the 
fraud  complained  of  is  a  representation,  express  or  im- 
plied, false  within  the  knowledge  of  the  party  making 
it.(z)  Its  effect,  however,  on  the  priority  of  conflicting 
equities,  renders  it  proper  to  be  noticed  here. 

(  g)  Newlands  v.  Paynter,  4  M.  &  C.  408  ;  Lodge  v.  Ly8eley,4  Sim.  70  ; 
Langton  v.  Uorton,  1  Hare  549,  560 ;  Whitworth  v.  Gaugain,  3  Id.  416 ;  1 
Ph.  728. 

(A)  1  &  2  Vict.  c.  110 ;  Whitworth  v.  Gaugain,  3  Hare  416 ;  1  Ph.  728. 

(f )  Infra,  Rescission  of  transactions  on  the  ground  of  fraud. 

In  Cadbury  v.  Duval,  1  Am.  Law  Reg.  105  (aflBrmed  on  appeal),  the  doc- 
trine was  applied  to  a  creditor  by  judgment  for  contemporaneous  ad- 
vances. 


318  ADAMS's    DOCTRINE     OF    EQUITY. 

The  meaning  of  the  rule  is,  that  if  a  person  interested 
in  an  estate  knowingly  misleads  another  into  dealing  with 
the  estate  as  if  he  were  not  interested,  he  will  be  post- 
poned to  the  party  misled,  and  compelled  to  make  his 
representation  specificall}'-  good.  If,  therefore,  a  person, 
intending  to  huy  an  estate  or  to  advance  money  on  it,  in- 
quires of  another  whether  he  has  any  encumbrance  or 
claim  thereon,  stating  at  the  same  time  his  intention  to 
make  the  purchase  or  advance,  and  the  person  of  whom 
the  inquiry  is  made  untruly  deny  the  fact,  equity  will 
relieve  against  him;  and  if  he  has  acquired  the  legal 
ownership,  will  decree  him  a  trustee  for  the  puisne  claim- 
ant.^ And  even  though  he  do  not  expressly  deny  his 
own  title,  yet  if  he  knowingly  suffers  another  to  deal 
with  the  property  as  his  own,  he  will  not  be  permitted  to 
assert  it  against  a  title  created  by  such  other  person.  (^)^ 
The  same  principle  will  apply  if  he  lie  by  and  allow 
another  to  expend  money  in  improvements,  without  giving 
notice  of  his  own  claim.  But  the  fact  of  improvements 
having  been  made  in  error,  where  such  error  was  not 
abetted  by  himself  creates  no  equity  for  reimbursement 
of  their  expense.  (/) 

(k)  3  Sug.  V.  &  P.  429  ;  Nicholson  v.  Hooper,  4  M.  &  C.  179. 

[l)  Pilling  V.  Armitage,  12  Ves.  78,  84  ;  Cawdor  v.  Lewis,  1  Y.  &  C. 
427 ;  E.  I.  Company  v.  Vincent,  2  Atk.  83  ;  Williams  v.  Earl  of  Jersey, 
Cr.  &  P.  91 ;  3  Sug.  V.  &  P.  437. 

\  Otis  V.  Sill,  8  Barb.  S.  C.  102 ;  Lesley  v.  Johnson,  41  Barb.  359 ;  Lee 
V.  Kirkpatrick,  1  McCart  264 ;  Crocker  v,  Crocker,  31  N.  Y.  507  ;  Chap- 
man V.  Hamilton,  19  Ala.  121 ;  Folk  v.  Beidelham,  6  Watts  339  5  McKelvey 
V.  Truby,  4  W.  &  S.  323.  It  has  been  held,  however,  that  a  party  will 
not  be  postponed  on  the  ground  of  silence  alone,  where  his  title  is  upon 
record  :  Gouudie  v.  Northampton  Co.,  7  Penn.  St.  239  ;  Knouflf  v.  Thomp- 
son, 16  Id.  361 ;  Hill  V.  Epley,  31  Id.  331 ;  Clabaugh  v.  Byerly,  7  Gill  354. 
Neither  infancy  nor  coverture  will  excuse  parties  guilty  of  fraudulent 
concealment:  Schmithermen  v.  Eisernan,  7  Bush  (Ky.)  298. 

*  Carr  v.  Wallace,  7  Watts  400. 


OF    PRIORITIES,    ETC.  319 

In  order  to  tlie  introduction  of  this  equity,  it  is  essen- 
tial that  there  be  intentional  deceit  in  the  defendant,  or 
at  all  *events,  that  degree  of  gross  negligence  r*T  ci-i ' 
which  amounts  to  evidence  of  an  intent  to  de- 
ceive. If,  therefore,  the  party  standing  by  be  ignorant 
of  his  right,  or  if  he  has  been  merely  careless  or  negli- 
gent ;  e.  g.,  where  a  mortgagee  or  trustee,  by  not  taking 
the  title  deeds,  or  by  subsequently  parting  with  them, 
has  enabled  the  mortgagor  or  cestui  que  trust  to  cpmmit  a 
fraud,  the  mere  circumstance  of  his  having  done  so  will 
not  warrant  relief  against  him.^  It  may,  however,  ex- 
clude him  from  equitable  aid  as  against  a  subsequent 
purchaser  or  mortgagee,  (m) 

Cases  of  concealed  or  undisclosed  interest,  whether  the 
non-disclosure  be  fraudulent  or  accidental,  are  obviously 
distinct  from  those  where  the  interest  was  in  its  creation 
fraudulent  and  void,  and  where  therefore  its  non-disclo- 
sure is  not  treated  as  a  substantial  equity,  but  as  mere 
evidence  of  a  pre-existent  fraud.  In  respect  to  lands, 
such  non-disclosure  is  not  primd  facie  evidence  of  fraud; 
for  the  possession  of  land  does  not  ordinarily  follow  the 
permanent  ownership,  but  may  belong  to  a  mere  tenant 
at  will.  In  respect  to  personalty  it  is  otherwise,  for  the 
ordinary  proof  of  ownership  is  possession  of  the  pro- 
Cm)  Evans  v.  Bicknell,  6  Ves.  174 ;  Martinez  v.  Cooper,  2  Russ.  198. 

^  A  legal  mortgagee  will  be  postponed  on  account  of  not  retaining  the 
title  deeds;  when  he  displays  fraud,  or  gross  or  wilful  negligence,  or  when 
he  gives  up  the  deeds  to  the  mortgagor  for  the  express  purpose  of  raising 
a  sum  of  money,  and  thus  puts  it  in  the  power  of  the  latter  to  raise, a 
larger  sum :  Perry  Herrick  r.  Attwood,  2  De  G.  &  J.  21  (see  Lloyd  v.  Att- 
wood,  3  De  G.  &  J.  614) ;  Waldron  v.  Sloper,  1  Drewry  193.  But  where 
there  is  no  such  negligent  and  deliberate  action  on  the  part  of  the  mort- 
gagee, he  will  not  be  postponed  :  Hewitt  v.  Loosemore,  9  Hare  449  ;  Colyer 
».  Finch,  5  House  Lds.  Cas.  905.  See  also,  Dowle  v.  Saunters,  2  Hem.  & 
M.  242. 


320  ADAMS's    DOCTRINE     OF    EQUITY. 

perty ;  and  therefore,  if  such  possession  be  left  in  an 
assignor,  it  is  prima  facie  a  badge  of  fraud  in  the  assign- 
ment, though  subject  to  be  rebutted  by  counter  proof.  (?^)^ 
The  third,  and  most  important  rule  of  equity  is,  that 
"a  party  taking  with  notice  of  an  equity  takes  subject  to 
that  equity."^ 

(n)  Twyne's  Case,  3  Rep.  80  ;  Manton  v.  Moore,  7  T.  R.  67  ;  Leonard  v. 
Baker,  1  M.  &  S.  251 ;  Arundell  v.  Phipps,  10  Ves.  139,  145  ;  Martindale 
V.  Booth,  3  B.  &  Ad.  498. 

^  Twyne's  Case,  1  Sm.  Lead.  Cas.  33,  6th  Am.  ed. 

^  The  subject  of  notice  will  be  found  discussed  in  the  notes  to  Le  Neve 
V.  Le  Neve,  2  Lead.  Cas.  Eq.  23.   Notice  may  be  either  actual  or  construct- 
ive. Actual  notice  arises  from  distinct  knowledge  or  means  of  knowledge  ; 
constructive  notice  springs  from  a  presumption  of  law  which  fastens  know- 
ledge upon  a  person  conclusively  supposed  to  be  affected  by  the  notice. 
Instances  of  the  former  are  not  needed ;  of  the  latter,  the  notice  afforded  by 
the  recording  acts  is  an  illustration.  Notice  must  be  certain,  and  not  vague : 
Massie  v.  Greenhow,  2  P.  &  H.  255 ;  Williamson  v.  Brown,  15  N.  Y.  354-364. 
It  must  be  clear  enough  to  put  a  party  on  inquiry,  and  enable  him  to  prose- 
cute that  inquiry  to  a  successful  termination  :  Kerns  v.  Swope,  2  Watts  78. 
If  this  is  done,  it  will  be  suiBcient :  Hawley  v.  Cramer,  4  Cow.  717 ;  Pearson 
V.  Daniel,  2  Dev.  &  Bat.  Ch.  360 ;  Sigourney  v.  Munn,  7  Conn.  324 ;  Booth 
V.  Barnura,  9  Id.  286  ;  Peters  v.  Goodrich,  3  Id.  146  ;  Lasselle  v.  Barnett, 
1  Blackf.  150;  Cotton  v.  Hart,  1  A.  K.  Marsh.  56  ;   Pitney  v.  Leonard,  1 
Paige  461 ;  Woodfolk  v.  Blount,  3  Hey  147  ;  Harris  v.  Carter,  3  Stew.  233 ; 
Benzein  v.  Lenoir,  1  Dev.  Ch.  225.     And  the  notice  need  not  be  distinct 
and  formal,  for  if  a  purchaser  has  the  means  of  knowledge  he  cannot 
wilfully  neglect  them,  but  will  be  affected  with  notice  :  Graff  v.  Castleman, 
5  Randolph  195  :  Pendleton  v.  Fay,  2  Paige  202  ;  Doyle  v.  Teas,  4  Scam. 
202 ;  Cook  V.  Gaiza,  14  Tex.  201 ;  Wilson  v.  Miller,  16  Iowa  111 ;  Tilling- 
hastu.  Champlin,  4  R.  Island  173,  215;  Price  v.  McDonald,  1  Md.  403; 
Hoxie  V.  Carr,  1  Summer  193  ;  Harper  v.  Reno,  1  Freem.  Ch.  323  ;  Green 
V.  Slayter,  4  J.  C,  R.  47  ;  Kerns  v.  Swope,  2  Watts  ^8  ;  Churcher  v.  Guern- 
sey, 39'Penn.  St.  84;  Flagg  v.  Mann,  2  Sum.  486;  Hackwith  v.  Damron, 
1  Mon.  327 ;  Miller  v.  Shackleford,  2  Dana  264 ;  Billington's  Lessee  v. 
Welsh,  5  Binn.  132  ;  2  Lead.  Cas.  Ei^.  154 ;  Allen  v.  McCalla,  25  Iowa  464 ; 
Bell  V.  Twilight,  18  N.  H.  159 ;  Parker  v.  Foy,  43  Miss.  260.     The  notice 
should  come  from  parties  interested,  and  vague  representations  by  strangers 
will  have  no  effect :  Butler  v.  Stevens,  26  Maine  484 ;  The  City  Council  v. 
Page,  1  Spear's  Eq.  159  ;  Barnhart  v.  Greenshields,  28  Eng.  L.  &  Eq.  77. 
But  full  and  direct  information,  even  from  a  stranger,  cannot  be  disre- 


OF    PRIORITIES,    ETC.  321 

The  meaning  of  this  doctrine  is,  that  if  a  person  acquir- 
ing property  has,  at  the  time  of  acquisition,^  notice  of  a 

garded :  Ripple  v.  Ripple,  1  Rawle  386.  Notice  to  an  agent  is  of  course 
notice  to  the  principal,  but  it  must  as  a  general  rule  be  in  the  course  of 
the  same  transaction.  See  Hill  on  Trustees  165,  and  notes ;  post  157,  note. 
And  notice  to  one  of  several  trustees  is  notice  to  all :  see  Willes  c.  Green- 
hill,  29  Beav.  376  ;  also  Brazelton  v.  Brazelton,  16  Iowa  417.  A  purchaser 
who  is  bound  to  take  notice  of  a  deed  will  be  affected  with  notice  of  every- 
thing that  appears  upon  its  face :  note  to  Le  Neve  v.  Le  Neve,  2  Lead. 
Gas.  Eq.  169,  and  cases  cited ;  George  v.  Kent,  7  Allen  16 ;  Montefiore  », 
Browne,  7  House  of  Lords  Cas.  241,  See  Hetherington  v.  Clark,  30  Penn. 
St.  393.  And  where  it  is  the  duty  of  a  person  to  demand  the  production 
of  title-deeds,  he  will  be  held  to  have  notice  of  all  the  facts  of  which  the 
production  would  have  informed  him :  Peto  v.  Hammond,  30  Beav.  509 ; 
Kellogg  V.  Smith,  26  N.  Y.  18.  Possession  is  notice,  because  it  ought  to 
put  parties  upon  inquiry  :  Krider  v.  Lafferty,  1  Whart.  303  :  see  Patton  v. 
The  Borough,  40  Penn.  St.  206 ;  Hughes  ».  United  States,  4  Wall.  S.  C.  232  ; 
Morrison  v.  March,  4  Minn.  422 ;  Bank  of  Newbury  v.  Eastman,  44  N.  H. 
431 ;  Warren  v.  Richmond,  53  111.  52;  Perkins  v.  Swank,  43  Miss.  349  ; 
and  even  when  the  possession  is  not  exclusive:  Boggs  v.  Anderson,  50 
Maine  161 :  Hill  on  Trustees  798,  note  (4th  Am.  ed.).  A  bond  jide  pur- 
chaser will  not  be  affected  by  the  notice  of  his  vendor :  Demarest  r.  Wyn- 
koop,  3  John.  Ch.  147  ;  and  on  the  other  hand  a  purchaser  who  has  notice 
will,  as  a  general  rule,  be  protected  by  the  want  of  notice  on  the  part  of 
his  vendor :  Curtis  v.  Lunn,  6  Munf.  42 ;  Lindsey  v.  Rankin,  4  Bibb  482 
Bumpus  V.  Platner,  1  John.  Ch.  213 ;  McNitt  v.  Logan,  Litt.  Sel.  Cas.  69 
Wood  V.  Chapin,  13  N.  Y.  509  ;  Webster  v.  Van  Steenbergh,  46  Barb.  211 
Hagthorp  v.  Hook's  Adm'r.,  1  G.  &  J.  273.  And  the  same  rule  applies  to 
cases  of  constructive  notice  under  the  recording  acts :  American  note  to 
Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq.  184. 

'  In  England  and  some  of  the  United  States,  the  rule  is  that  notice  be- 
fore the  execution  of  the  conveyance,  though  after  payment  of  the  purchase- 
money,  is  sufficient.  But  in  others,  as  Pennsylvania,  Virginia  and  Iowa, 
the  notice  must  be  before  payment  of  the  purchase-money  :  Hill  on  Trus- 
tees (4th  Am.  ed.)  259;  notes  to  Basset  v.  Nosworthy,  2  Lead.  Cas.  1 ; 
Barney  v.  McCarty,  15  Iowa  514.  In  some  of  the  states  also,  contrary  to 
the  English  rule,  and  that  prevailing  in  other  states,  payment  of  part  of 
the  purchase-money  will  be  a  protection  pro  tanto :  Juvenal  v.  Jackson, 
14  Penn.  St.  519  ;  Frost  v.  Beekman,  1  John.  Ch.  288  ;  Flagg  v.  Mann,  2 
Sumn.  486 ;  Paul  v.  Fulton,  25  Missouri  156 ;  but  compare  Fraim  v. 
Frederick,  32  Texas  294.  See  note  to  Basset  v.  Nosworthy,  ut  sup.  To 
entitle  a  party  to  the  status  of  a  bond  Jide  purchaser,  without  notice,  there 
21 


322  ADAMS's    DOCTRINE    OF    EQUITY.  ! 

prior  equity  binding  the  owner  in  respect  of  that  property, 
he  shall  be  assumed  to  have  contracted  for  that  only  which 
the  owner  could  honestly  transfer,  viz.,  his  interest,  sub- 
ject to  the  equity  as  it  existed  at  the  date  of  the  notice. 
r*i  noi  *-^^  accordance  with  this  principle,  the  pur- 
chaser of  property  from  a  trustee  with  notice  of 
the  trust,  is  himself  a  trustee  for  the  same  purposes;  the 
purchaser  of  property  which  the  vendor  has  already  con- 
tracted to  sell,  with  notice  of  such  prior  contract,  is  bound 
to  convey  to  the  claimant  under  it ;  and  the  purchaser  of 
land  which  the  vendor  has  covenanted  to  use  in  a  specified 
manner,  having  notice  of  that  covenant,  is  bound  by  its 
terms.  The  exact  extent  to  which  this  doctrine  will  be 
carried,  where  a  covenant  has  been  made  by  the  owner  of 
land,  the  burden  of  which  does  not  at  law  run  with  the 
land,  does  not  appear  to  be  positively  settled.  If,  how- 
ever, the  covenant  be  one  respecting  the  land,  and  not 
purely  collateral,  there  appears  to  be  no  reason  why  the 
doctrine  of  notice  should  not  apply,  or  why  the  assignee 
of  the  land,  knowing  that  the  covenant  has  modified  his 
assignor's  ownership,  should  not  be  presumed  to  have  con- 
tracted for  it,  subject  to  that  modification,  (o)^ 

It  will  be  observed,  that  the  notice  required  by  this 
doctrine  is  a  notice  of  an  equity,  which  if  clothed  with 

(o)  Whatman  v.  Gibson,  9  Sim.  196;  Schreiber  v.  Creed,  10  Sim.  9; 
Keppell  V.  Bailey,  2  M.  &  K.  517 ;  2  Sug.  V.  &  P.  500. 

must  be  a  want  of  notice  both  at  the  time  of  the  purchase  and  at  the  time 
of  payment:  Blanchard  v.  Tyler,  12  Mich.  339 

^  It  was  accordingly  so  decided  in  Tulk  v.  Moxhay,  2  Phill.  774,  in  which 
an  assignee  of  land  with  notice  of  a  covenant  not  to  build,  was  restrained, 
without  any  regard  to  the  technical  rules  in  Spencer's  Case ;  and  the  case 
has  been  followed  frequently  since.  See  Coles  v.  Sims.  5  De  G.,  M.  &  G. 
I ;  Wilson  V.  Hart,  L.  R.  1  Ch.  Ap.  463  ;  Western  v.  MacDermott,  L.  R.  2 
Ch.  Ap.  72. 


OP    PRIORITIES,     ETC.  323 

legal  completeness  would  be  indefeasible,  and  not  merely 
notice  of  a  defeasible  legal  interest,  or  of  an  interest, 
which,  if  legal,  would  be  defeasible.  For  the  principle  is, 
that  an  interest,  which  if  legal,  would  be  indefeasible, 
shall  not  be  defeated  by  reason  of  its  equitable  character, 
by  a  party  who  has  notice  of  it.  If,  being  legal,  it  may 
be  defeated  at  law,  there  is  no  equity  to  preserve  it. 

Instances  of  the  first  class  will  be  found  in  trusts  and 
contracts,  including  the  lien  of  a  vendor  of  real  estate  • 
and  in  judgments  against  the  owners  of  an  equitable  in- 
terest ;  for  if  the  trust  or  contract  were  perfected  by  con- 
veyance, or  the  legal  ownership  were  vested  in  the  judg- 
ment debtor,  the  right  of  the  cestui  que  trust  or  vendee  in 
the  one  case,  or  of  the  judgment  creditor  in  the  other, 
could  not  be  subsequently  defeated.  The  case  of  dower 
was  until  ^recently  an  exception  to  this  rule.  We  r*-iro-, 
have  already  seen  that  by  an  anomalous  distinc- 
tion in  the  law  of  trusts,  the  widow  was  excluded  from 
dower  in  a  trust  estate,  although  she  would  have  been  en- 
titled to  it  in  a  legal  one  of  the  same  character.  The 
same  distinction  was  continued  in  respect  to  notice ;  and 
it  was  held,  that  although  the  mere  existence  of  an  out- 
standing term  would  not  exclude  the  widow  in  favor  of  the 
husband's  heir,  yet  it  would  exclude  her  in  favor  of  her 
vendee,  notwithstanding  that  the  purchase  was  made  with 
notice  of  her  right.  This  anomaly,  as  well  as  that  of  her 
exclusion  from  a  trust  estate,  has  been  abolished  by  the 
recent  act. 

Instances  of  the  second  class  will  be  found  in  judg- 
ments defeated  under  the  old  law  by  a  power  of  appoint- 
ment in  legal  titles  destroyed  by  fine ;  (p)  in  contracts 

{p)  Langley  v.  Fisher,  9  Bea.  90 ;  Story  v.  Windsor,  2  Atk.  630. 


324  ADAMS'S    DOCTRINE     OF    EQUITY. 

which  the  purchaser  had  ah  initio  a  right  to  nullify ;  {q) 
and  in  voluntary  conveyances  avoided  by  subsequent 
alienation  for  value ;  (r)  for  in  all  these  cases  the  legal 
right  of  the  claimant  is  legally  defeasible,  and  he  has  no 
independent  equity  to  sustain  it. 

There  is  an  apparent  exception  to  this  rule  in  regard 
to  unregistered  conveyances  and  undocketed  judgments, 
which,  although  mere  legal  titles,  and  invalid  at  law, 
have  been  enforced  as  equities  on  the  ground  of  notice. 

By  several  acts  of  Parliament,^  all  deeds  and  wills  con- 
cerning estates  within  the  North,  (5)  East,(i^)  or  West(w) 
Ridings  of  the  county  of  York,  or  within  the  town  and 
county  of  Kingston-upon-Hull,  {v)  or  within  the  county  of 
Middlesex,  are  directed  to  be  registered.  (2(')^     And  it  is 

{q)  Lufkin  v.  Nunn,  11  Ves.  170 ;  3  Sug.  V.  &  P.  441. 

(r)  Pulvertoft  v.  Pulvertoft,  18  Ves.  84 ;  Buckle  v.  Mitchell,  Id.  100. 

(*)  8  Geo.  2,  c.  6.  [t]  6  Ann.  c.  35. 

(m)  2  &  3  Ann.  c.  4 ;  5  Ann.  c.  18.       {v)  6  Ann.  c  35. 

{w)  7  Ann.  c.  120. 

'  Two  acts  have  been  recently  passed  in  England  in  regard  to  real 
estate,  which  ought  to  be  noticed  here.  The  Stat.  25  &  26  Vict.  c.  67  pro- 
vides for  an  examination  of  title  by  the  Court  of  Chancery,  and  a  declara- 
tion thereupon  ;  and  Ch.  53  of  the  same  statute  furnishes  a  system  of 
registration  for  such  titles  as,  after  official  investigation,  appear  good  and 
marketable. 

^  The  rule  under  the  recording  acts,  in  force  generally  in  the  United 
States,  is  different  from  that  under  the  registry  acts  in  England,  and  it  is 
held  that  the  registry  of  a  deed  or  mortgage,  is  notice  of  its  contents,  and 
of  equities  created  thereby,  or  arising  therefrom,  to  all  persons  claiming 
under  the  grantor,  any  title  held  by  him  at  the  time  of  conveyance :  4 
Kent's  Com.  174 ;  American  notes  to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas. 
Eq.,  p.  i.,  178,  and  cases  cited,  among  which  are  Cushing  v.  Ayer,  25  Maine 
383  ;  McMechan  v.  Griffing,  3  Pick.  149  ;  Peters  v.  Goodrick,  3  Conn.  146  ; 
Parkist  v.  Alexander,  1  J.  C.  394  ;  Wendell  v.  Wadsworth,  20  John.  663  ; 
Plume  V.  Bone,  1  Green  63  ;  Evans  r.  Jones,  1  Yeates  174  ;  Irrin  v.  Smith, 
17  Ohio  226  ;  Martin  v.  Sale,  Bail.  Eq.  1 ;  Shults  v.  Moore,  1  McLean  520; 
Hughes  V.  Edwards,  9  Wheat.  489 ;  Hickman  v.  Perrin,  6  Cold.  (Tenn.) 
135  5  Digman  v.  McCoUum,  47  Mo.  372.     This  does  not  apply,  however. 


OF    PRIORITIES,    ETC.  325 

enacted,  that  all  such  deeds  shall  be  adjudged  fraudulent 
and  void  against  any  subsequent  purchaser  or  mortgagee 

where  the  recording  of  an  instrument  is  not  legally  requisite,  or  it  is  de- 
fectively executed  or  acknowledged  :  cases  in  notes  to  Le  Neve  v.  Le  Neve, 
ut  supra  :  Moore  v.  Auditor,  3  Hen.  &  Munf.  232;  Sumner  ».  Rhodes,  14 
Conn.  135 ;  Walker  v.  Gilbert,  1  Freem.  Ch.  85 ;  Harper  v.  Reno,  Id.  323  ; 
Isham  V.  Bennington  Iron  Co.,  19  Verm.  230 ;  Graham  v.  Samuel,  1  Dana 
166 ;  Pitcher  ».  Barrows,  17  Pick.  361 ;  Thomas  v.  Grand  Gulf  Bank, 

9  Sm.  &  M.  201  ;  Green  v.  Drinker,  7  W.  &  S.  440 ;  Shults  v.  Moore,  1 
McLean  520;  Brown  v.  Budd,  2  Carter  (Ind.)  442;  Choteau  v.  Jones,  11 
Illinois  300 ;  Work  v.  Harper,  24  Miss.  517 ;  Pope  v.  Henry,  24  Verm. 
560  ;  Lally  v.  Holland,  1  Swan  396  ;  Parret  v.  Shaubhut,  5  Minn.  323  ; 
Racouillat  v.  Rene,  32  Cal.  450 ;  nor  where  it  is  recorded  in  a  different 
county  from  that  in  which  the  lands  lie  :  Aster  r.  Wells,  4  Wheat.  466 ; 
Kerns  v.  Swope,  2  Watts  75  ;  or,  d  fortiori,  in  another  state :  Hundley  v. 
Mount,  8  S.  &  M.  387  ;  Lewis  v.  Baird,  3  McLean  56 ;  Crosby  v.  Huston, 
1  Texas  203.  But  in  De  Lane  v.  Moore,  14  How.  U.  S.  253  ;  U.  S.  Bank 
V.  Lee,  13  Peters  107;  Crenshaw  r.  Anthony,  M.  &  Y.  110;  Bruce  w. 
Smith,  3  H.  &  J.  449  ;  Crosby  v.  Huston,  1  Texas  203,  it  was  held  that 
the  registration  of  a  settlement  of  personal  property  in  the  state  where 
the  parties  reside  at  the  time,  and  the  property  then  was,  is  vajid  as 

>  against  creditors  and  purcha.sers  in  another  state,  into  which  the  property 
is  afterwards  removed :  though  see  Hundley  r.  Mount,  8  Sm.  &  M.  387. 
The  record  also  is  not  notice  to  those  not  claiming  title  under  the 
same  grantor:  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151 ;  Lightner  v.  Mooney, 

10  Watts  412  ;  Woods  v.  Farmere,  7  Id.  282 ;  Bates  v.  Norcross,  14  Pick. 
224 ;  Crockett  v.  Maguire,  10  Mo.  34 ;  Tilton  r.  Hunter,  24  Maine  29  ; 
Leiby  v.  Wolfe,  10  Ohio  80 ;  Hoy  v.  Bramhall,  4  Green  (N.  J.)  563  ;  Igle- 
hart  V.  Crane,  42  111.  261 ;  Calder  v.  Chapman,  52  Penn.  St.  359.  An  un- 
recorded deed,  is  in  general,  good  between  the  parties:  4  Kent  456,  cases 
cited.  And  where  a  subsequent  purchaser  has  knowledge  of  the  exist- 
ence of  such  a  deed,  it  is  equivalent,  as  to  him,  to  registry,  and  is  treated 
as  such,  both  at  law  and  in  equity:  Jackson  v.  Leek,  19  Wend.  339 5 
Jackson  r.  Sharp,  9  John.  163  ;  Porter  v.  Cole,  4  Maine  20;  Farnsworth 
r.  Childs,  4  Mass.  637;  Martin  v.  Sale,  Bail.  Eq.  1;  Corry  r.  Caxton,  4 
Binn.  140;  Speer  ».  Evans,  47  Penn.  St.  141;  Pike  v.  Armstead,  1  Dev. 
Eq.  110;  Vanmeter  v.  McFaddin,  8  B.  Monr.  442;  Ohio  Ins.  Co.  r.  Led- 
yard,  8  Ala.  866  ;  McRaven  v.  Maguire,  9  Sra.  &  M.  34  ;  McConnell  r.  Read, 
4  Scam.  117  ;  Dearing  v.  Lightfoot,  19  Ala.  28  ;  McCuUough  v.  Wilson,  21 
Penn.  St.  4.36;  Cent«r  v.  P.  &  M.  Bank,  22  Ala.  743;  Gibbes  ».  Cobb,  7 
Rich.  Eq.  54 ;  notes  to  Le  Neve  v.  Le  Neve,  ut  supra ;  Conover  v.  Von  Ma- 
t«r,  3  Green,  (N.  J.)  481 ;  Nice's  Appeal,  54  Penn.  St.  200.     Though  a 


326  ADAMS's    DOCTRINE    OF    EQUITY. 

r*i  cjii    ^^^  valuable  *consideration,  unless  a  memorial 
thereof  be  registered,  in  the  manner  thereby  pre- 

mortgage  is  falsely  recited  in  the  records,  it  is  notice  of  the  actual  mort- 
gage :  Smallwood  v.  Lewin,  2  McCarter  (N.  J,)  60.  Recital  of  one  un- 
registered in  a  registered  one  is  sufficient  notice :  Hamilton  v.  Nutt,  34 
Conn.  501.  But  see  in  Ohio  as  to  mortgages,  Mayham  v.  Coombs,  14 
Ohio  428.  In  regard  to  judgment  creditors,  and  purchasers  at  sales 
under  judgments,  actual  notice  is,  without  doubt,  too  late  after  judgment 
obtained,  and,  it  would  seem,  after  the  status  of  creditor  has  been  ac- 
quired :  Davidson  v.  Cowen,  1  Eq.  470 ;  Uhler  v.  Hutchinson,  23  Penn.  St. 
110,  overruling  Solms  v.  McCoUoch,  5  Id.  473  ;  American  note  to  Bassett 
V.  Nosworthy,  2  Lead.  Cas.  in  Eq.  111.  See,  also,  Benham  v.  Keane,  1 
Johns.  &  H.  685 ;  Barker  v.  Bell,  37  Ala.  354.  Under  the  statute 
in  Iowa,  however,  the  rule  is  different ;  see  Seevers  v.  Delashmutt, 
11  Iowa  174;  Parker  v.  Pierce,  16  Id.  227  ;  Hays  v.  Thode,  18  Iowa  51. 
But  the  authorities  are  at  variance  with  regard  to  the  character  of  the 
notice  which  will  postpone  a  recorded  to  a  prior  unrecorded  deed.  The 
cases  in  England,  since  Iline  v.  Dodd,  2  Atkyns  275,  place  the  relief  given 
against  the  subsequent  purchaser,  which  is  there  only  in  equity,  on  the 
ground  of  fraud  (see  Le  Neve  v.  Le  Meve,  ut  supra ;  Fleming  v.  Burgin, 
2  Ired.  Eq.  584 ;  Ohio  Ins.  Co.  v.  Ross,  2  Md.  Ch.  Dec.  35) ;  on  which 
alone,  it  is  supposed,  the  Act  of  Parliament  could  be  broken  in  upon ; 
and  therefore,  require  clear  proof  of  actual  notice,  which  is  considered 
equivalent  to  fraud :  Chadwick  v.  Turner,  L.  R.  1  Ch.  310.  In  some  of 
the  states  this  doctrine  has  been  adopted,  and  constructive  notice  is  held 
to  be  insufficient :  Norcross  v.  Widgery,  2  Mass.  509  ;  Bush  v.  Golden,  17 
Conn.  594;  Harris  v.  Arnold,  1  Rhode  Island  125  ;  Frothingham  v.  Stacker, 
11  Mo.  77  ;  Martin  v.  Sale,  Bail.  Eq.  1  ;  Fleming  v.  Burgin,  2  Ired.  Eq. 
584 ;  Ingram  v.  Phillips,  5  Strobh.  200  ;  see  Burt  v.  Cassedy,  12  Ala.  734  ; 
McCaskle  v.  Amarine,  12  Id.  17 ;  Hopping  v.  Burnham,  2  Green  (Iowa) 
39.  Thus,  possession  of  the  prior  grantee,  except,  perhaps,  where  dis- 
tinctly brought  home  to  the  knowledge  of  the  purchasers,  is  held  to  be  in- 
sufficient :  Harris  v.  Arnold ;  Frothingham  v.  Stacker.  In  oiher  states, 
there  are  statutory  provisions  to  the  same  effect :  Spofford  v.  Weston,  29 
Maine  140 ;  Butler  v.  Stevens,  26  Id.  489  ;  Curtis  v.  Mund,  3  Mefc.  405  5 
Hennessey  v.  Andrews,  6  Cush.  170.  In  Pennsylvania  and  New  York, 
the  decisions  are  not  consistent.  In  Scott  v.  Gallager,  14  S.  &  R.  333,  and 
Boggs  V.  Varner,  6  W.  &  S.  469,  the  language  of  the  court  is  in  accord- 
ance with  the  doctrine  just  stated.  But  there  is  no  doubt  that  in  the 
former  state,  open  and  notorious  possession  is  sufficient  notice  of  an  un" 
recorded  deed  :  Krider  v.  Lafferty,  1  Whart.  303  ;  Randall  v.  Silverthorn, 
4  Penn.  St.  173 ;  Patton  v.  The  Borough,  40  Id.  206.     So  in  New  York, 


OF    PRIORITIES,     ETC.  327 

scribed,  before  the  registering  of  the  memorial  of  the  deed 
under  which  such  subsequent  purchaser  or  mortgagee  shall 
claim.  And  that  all  devises  by  will  shall  be  adjudged 
fraudulent  and  void  against  subsequent  purchasers  or 
mortgagees,  unless  a  memorial  of  such  will  be  registered 
within  the  space  of  six  months  after  the  death  of  the  tes- 
tator, dying  within  Great  Britain ;  or  within  the  space  of 
three  years  after  his  death,  dying  upon  the  sea  or  in  parts 
beyond  the  seas.  And  it  is  by  the  same  acts  further  pro- 
vided, that  no  statute,  judgment,  or  recognisance  (other 
than  such  as  shall  be  entered  into  the  name  and  upon  the 
proper  account  of  the  King,  his  heirs,  and  successors), 
shall  bind  any  such  estates  as  aforesaid,  but  only  from  the 
time  that  a  memorial  thereof  shall  be  duly  entered,  (a;) 
The  question  which  has  arisen  under  these  acts  is. 


(«)  3  Sug.  V.  &  P.  c.  xxi.,  8.  5. 


A. 


Tuttle  V.  Jackson,  6  Wend.  213,  has  established,  contrary  to  Day  v.  Bun- 
ham,  2  J.  C,  182,  and  other  cases,  that  constructive  notice  is  enough  to 
postpone  a  subsequent  purchaser.  See  Troup  r.  Hurlbut,  10  Barb.  S.  C. 
354.  And  in  Grimstone  v.  Carter,  3  Paige  421,  it  was  held  in  general, 
that  equities  and  agreements  to  convey,  were  not  within  the  recording 
acts.  In  Maryland,  in  the  case  of  Price  v.  McDonald,  1  Md.  414,  a  simi- 
lar doctrine  was  held  by  the  Court  of  Appeals ;  though  in  Ohio  Ins.  Co. 
V.  Ross,  2  Md.  Ch.  Dec.  35,  and  Gill  v.  McAttee,  Id.  268,  the  English  rule 
was  supported  and  followed  by  Chancellor  Johnson.  That  possession  is 
notice,  has  been  also  held  in  Webster  v.  Maddox,  6  Maine  256  ;  Kent  v. 
Plummer,  7  Id.  464  (before  the  statute  referred  to  above) ;  Boggs  v.  An- 
derson, 50  Id.  161 ;  Buck  v.  Halloway,  2  J,  J.  Marsh.  163 ;  Hopkins  v. 
Garrard,  7  B.  Monr.  312;  Colby  v.  Kenniston,  4  N.  H.  262;  Williams  v. 
Brown,  14  111.  200;  Morrison  v.  Kelly,  22  Id.  610;  Wyatt  v.  Elam,  19 
Geo.  335  ;  Vaughan  v.  Tracy,  22  Mo.  4  ;  see,  also.  Bell  v.  Twilight,  2 
Foster  (N.  H.)  500;  Griswold  v.  Smith,  10  Verm.  452;  and  in  Landes  v. 
Brant,  10  How.  U.  S.  348 ;  where,  indeed,  the  point  was  considered  to  be 
unquestioned.  This,  however,  is  a  mistake.  This  subject  is  treated  of 
with  great  ability  and  acuteness  in  notes  to  Le  Neve  v.  Le  Neve,  ut  supra, 
where  the  cases  will  be  found  collected.  See,  also,  Hart  v.  The  Farmers' 
Bank,  33  Verm.  252. 


328  ADAMS's    DOCTRINE    OF    EQUITY. 

whether  a  person  buying  an  estate  with  notice  of  a  prior 
encumbrance,  not  registered,  shall  be  bound  in  equity  by 
such  encumbrance,  although  he  has  obtained  a  priority  at 
law  by  registration  of  his  deed.^  And  it  has  been  held 
that  he  shall;  but  that  the  notice  must  be  clear  and 
undoubted,  amounting  in  effect  to  evidence,  that  knowing 
the  situation  of  the  prior  encumbrances,  he  registered 
in  order  to  defraud  them.  A  mere  lis  pendens  is  not  such 
notice. 

The  doctrine  as  to  notice  of  unregistered  deeds  has 
been  a  subject  of  regret,  as  breaking  down  the  operation 
of  the  acts ;  and  it  is  perhaps  difficult  to  reconcile  it  alto- 
gether to  principle.  For  if  it  be  assumed  that  the  un- 
registered conveyance  evidences  a  mere  legal  title,  invali- 
dated by  a  mere  legal  flaw,  it  is  difficult  to  see  how  an 
equity  can  arise,  because  an  act  of  Parliament  has  made 
it  invalid ;  if  it  evidences  an  equitable  title  by  contract, 
which  the  want  of  registration  has  deprived  of  legal  com- 
pleteness, it  is  difficult  to  see  why  the  same  degree  of 
r*1  ^^1  *^^^i^^>  which  would  bind  in  other  cases,  should 
not  bind  in  this.(y) 

The  question  with  respect  to  undocketed  judgments 
has  arisen  as  follows :  It  was  directed  by  the  old  law, 
that  a  particular  of  all  judgments  entered  in  the  Courts 
should  be  made  and  put  in  an  alphabetical  docket,  and 
that  no  undocketed  judgment  should  affect  any  lands  or 
tenements  as  against  purchasers  or  mortgagees,  (sr)  The 
first  decision  in  favor  of  the  undocketed  judgments  was, 
that  if  the  purchaser  had  notice  of  it,  and  did  not  pay 

(y)  Jolland  v.  Stainbridge,  3  Ves.  478  ;  Wyatt ».  Barwell,  19  Id.  435 ; 
3  Sug.  V.  &  P.  372-3  ;  Tyrrell's  Suggestions  230. 
(z)  4  &  5  Wm.  &  Mary,  c.  20 ;  7  &  8  Wm.  3,  c.  36. 


Butler  ».  Viele,  44  Barb.  (N.  Y.)  166. 


OF    PRIORITIES,    ETC.  329 

the  value  of  the  estate,  it  should  be  presumed  that  he 
agreed  to  pay  it  off,  and  he  should  be  compelled  in  equity 
to  do  so.  The  question  afterwards  came  before  Lord  El- 
don,  on  a  bill  for  specific  performance,  where  the  pur- 
chaser had  notice  of  undocketed  judgments.  Lord  El- 
don  refused  to  force  the  title  on  him,  stating  at  the  same 
time  an  opinion,  grounded  on  the  decisions  under  the 
Kegistry  Acts,  that  he  would  be  bound  by  notice.  He 
expressed,  however,  some  doubt  whether  the  doctrine 
could  be  perfectly  reconciled  to  principle ;  and  it  is  per- 
haps attended  with  the  more  difficulty,  because  the  un- 
docketed judgment  is  only  an  invalid  title  by  an  act  of 
law,  and  is  not,  like  an  unregistered  conveyance,  evidence 
of  a  title  by  contract  in  equity,  (a)  The  doctrine  itself, 
however,  is  now  at  an  end.  The  system  of  dockets  has 
been  abolished,  a  new  method  of  reoj^tration  substi- 
tuted ;(^)  and  it  is  declared  that  notice  shall  be  imma- 
terial, (c) 

A  remarkable  illustration  of  the  doctrines  of  notice  is 
presented  by  the  rule  which  requires  the  purchaser  under 
a  trust  for  sale,  to  see  to  the  application  of  his  purchase- 
money.^  This  rule  assumes  that  the  trustee  is  expressly 
or  impliedly  authorized  to  sell,  and  that  he  does  not,  so 
far  as  *the  purchaser  is  aware,  intend  to  misapply  p^-.  r /.-i 
the  price.  For  if  either  of  these  ingredients  be 
wanting,  the  purchaser,  having  notice  of  a  breach  of  trust 
committed  or  intended,  would  be  obviously  responsible 

(a)  Davis  v.  Strathmore,  16  Ves.  419 ;  2  Sug.  V.  &  P.  394. 

(6)  1  &  2  Vict.  c.  110.  (c)  3  &  4  Vict.  c.  82. 

^  By  statute  23  &  24  Vict.  (1860)  c.  145,  §  29,  it  is  provided  that  the  re- 
ceipts in  writing  of  any  trustee  for  any  money  payable  to  him  in  the 
exercise  of  his  trust  shall  be  a  sufficient  discharge,  and  shall  exonerate  the 
purchaser  from  seeing  to  the  application  of  the  purchase-money. 


330  ADAMS's    DOCTRINE    OF    EQUITY. 

for  aiding  it.{d)  The  rule,  however,  goes  beyond  this, 
and  requires  the  purchaser  to  ascertain  that  his  purchase- 
money  is  in  fact  rightly  applied.^  If  the  trust  be  to  pay 
it  over  to  other  persons,  he  must  see  that  such  payments 
are  made ;  if  it  be  to  invest  the  amount  in  the  names  of 
the  trustees,  he  must  see  that  the  investment  is  duly 
made,  though  he  need  not  interfere  with  its  subsequent 
application,  [e)  In  order  to  obviate  this  inconvenience,  it 
is  usual  to  declare  by  an  express  clause,  that  the  trustee's 
receipt  shall  be  a  discharge ;  and  a  corresponding  autho- 

(d)  Watkins  v.  Cheek,  2  S.  &  S.  199;  Eland  v.  Eland,  4  M.  &  C.  420,  427. 

(e)  3  Sug.  V.  &  P.  158. 

^  Where  there  is  a  general  charge  or  power  to  sell  for  debts,  or  for  debts 
and  legacies,  the  purchaser  is  not  bound  to  look  to  the  application  of  the 
purchase-money :  Williams  v.  Otey.  8  Humph.  568  ;  Garnett  v.  Macon,  6 
Call  308  ;  Bruch  v.  Lantz,  2  Rawle  392 ;  Cadbury  v.  Duval,  10  Penn.  St. 
267 ;  Dalzell  v.  Crawford,  1  Pars.  Eq.  57 ;  Ilauser  v.  Shore,  5  Ired.  Eq. 
357  ;  Gardner  v.  Gardner,  3  Mason  178  ;  Andrews  v.  Sparhawk,  13  Pick. 
393 ;  Nicholls  v.  Peak,  1  Beas.  69.  So,  as  to  legacies,  where  there  is  a 
trust  for  reinvestment,  or  the  application  cannot  be  made  immediately : 
Wormley  v.  Wormley,  8  Wheat.  421 ;  Coonrod  v.  Coonrod,  6  Ilamm,  114 ; 
Hauser  v.  Shore,  5  Ired.  Eq.  357.  But  where  the  trust  is  for  the  payment 
of  scheduled  or  specified  debts,  the  cases  generally  hold  that  the  purchaser 
is  bound  to  see  to  the  application  of  the  purchase-money  :  Gardner  v.  Gard- 
ner, 3  Mason  178  /  Cadbury  v.  Duval,  10  Penn.  St.  267  ;  Dalzell  v.  Craw- 
ford, 1  Pars.  Eq.  57  ;  Wormley  v.  Wormley,  8  Wheat.  422  ;  Duffy  v.  Calvert, 
6  Gill  487  ;  though  see  the  remarks  of  Mr.  Wallace's  note  to  Elliott  v.  Mer- 
ryman,  1  Lead.  Cas.  Eq.  45,  as  to  devises  for  payment  of  debts.  It  has  also 
been  doubted  by  Mr.  Wallace,  ut  sup.,  whether,  under  a  devise  for  the  pay- 
ment of  legacies  simply,  the  rule  would  be  applied  in  this  country,  inas- 
much as  the  debts  of  a  decedent  are  always  an  implied  charge  on  land  here, 
and  therefore  it  is  supposed  such  a  charge  would  be  equivalent  to  a  devise 
for  the  payment  of  both  debts  and  legacies.  But  the  analogy  between  the 
two  cases  can  only  hold,  if,  on  a  sale  for  the  payment  of  legacies  alone, 
the  lien  of  debts  would  be  discharged,  which  is  by  no  means  clear.  In 
Dufiy  V.  Calvert,  6  Gill  487,  and  Downman  v.  Rust,  6  Rand,  587,  accord- 
ingly, a  purchaser  was  held  bound  to  see  to  the  application  of  the  purchase- 
money  under  such  circumstances.  See  on  this  subject  Hill  on  Trustees, 
pp.  342-363. 


OF    PRIORITIES,    ETC.  331 

rity  will  arise  by  implication,  if  the  nature  of  the  trust 
be  inconsistent  with  the  contrary  view.  If,  for  instance, 
the  sale  be  directed  at  a  time  when  the  distribution  could 
not  possibly  be  made,  it  will  be  assumed  that  the  trustees 
were  meant  to  give  a  discharge,  for  the  money  cannot  be 
paid  to  any  other  person.  (/)  The  same  assumption  is 
made  on  a  trust  for  general  payment  of  debts,  or  for  pay- 
ment of  debts  and  legacies  ;  for  it  is  impossible  that  the 
purchaser  should  ascertain  the  creditors ;  and  if  he  were 
held  liable  to  see  the  legacies  paid,  he  would  be  neces- 
sarily involved  in  the  account  of  debts.  If  the  original 
trust  be  for  payment  of  debts  and  legacies,  the  power  to 
give  a  discharge  is  not  affected,  although  the  purchaser 
may  know  that  the  debts  have  been  paid,  and  that  the 
legacies  alone  remain  as  a  charge.  (^)  Where  leasehold 
estates  are  purchased  from  an  executor,  tj^pir  price  is  ne- 
cessarily applicable  in  a  course  of  administration,  which 
is  tantamount  to  a  trust  for  general  payment  of  debts. 
And  it  is,  therefore,  settled  that  such  a  purchaser  is  not 
bound  to  see  to  the  application  of  the  purchase-money, 
when  he  *purchases  lond  fide,  and  without  notice  r*i  ^7-1 
that  there  are  no  debts.  (^)^ 

{/)  Balfour  r.  Welland,  16  Ves.  151 ;  Sowarsby  ».  Lacy,  4  Mad.  142. 
[g)  Forbes  v.  Peacock,  1  Ph.  717 ;  Sug.  V.  &  P.  c.  xvii.,  s.  1. 
\h)  2  Sug.  V.  &  P.  c.  xvii.,  8.  2. 

*  It  has  been  recently  held,  however,  that  it  is  immaterial  on  a  trust  for 
sale  for  the  payment  of  debts  and  legacies,  that  the  purchaser  has  notice 
there  are  no  debts,  or  even  that  there  were  none  at  the  testator's  death. 
The  principle  in  such  cases  was  said  by  the  Lord  Chancellor  to  be,  that 
the  testator  in  creating  such  a  trust  is  to  be  supposed  to  have  intended  to 
give  his  trustees  full  power  of  receiving  and  applying  the  money  ;  and  not 
to  rest  upon  the  ground  of  the  difficulty  a  purchaser  would  have  in  deter- 
mining whether  there  were  any  debts  or  not :  Stroughill  r.  Anstey,  1  Po 
G.,  M.  &  Gord.  635.  See  article  in  17  Jurist,  part  ii.,  251 ;  Hill  ua 
on  Trustees  553,  note,  4th  Am.  ed. 


332  ADAMS's    DOCTRINE     OF     EQUITY. 

The  only  remaining  question  as  to  notice  is  what  degree 
of  information  will  amount  to  notice.^  It  is  not  essential 
that  the  notice  be  given  to  the  party  himself;  but  notice 
to  his  counsel,  solicitor,  or  agent,  is  sufficient,  whether 
given  in  the  same  or  in  another  transaction,  provided 
there  be  adequate  reason  to  conclude  that  the  facts  con- 
tinued in  remembrance,  (i)  Where,  however,  a  solicitor  had 
obtained  for  himself  an  estate  from  a  client,  by  fi;aud, 
and  afterwards  on  his  selling  it  acted  as  the  purchaser's 
solicitor,  it  was  considered  by  Lord  Brougham,  in  opposi- 
tion to  Sir  John  Leach,  that  as  the  solicitor  had  in  fact 
defrauded  both  parties,  the  purchaser  could  not,  from  the 
mere  circumstance  of  his  having  employed  the  same  so- 
licitor, be  held  to  have  notice  of  the  fraud,  any  more  than 
the  party  on  whom  it  was  first  committed.  (^)^ 

The  ordinary  instances  of  notice  by  actual  information 
do  not  require  any  special  remark.  But  it  should  be  ob- 
served, that  under  this  head  is  included  notice  by  lis  pen- 
dens or  an  interlocutory  decree.^     For  it  is  presumed 

(t)  Fuller  V.  Bennett,  2  Hare  394. 
(k)  Kennedy  v.  Green,  3  M.  &  K.  699. 

'  See  on  the  aubject  of  notice,  notes  to  Le  Neve  v.  Le  Neve,  2  Lead. 
Cas.  Eq.  23. 

*  Knowledge  acquired  by  an  agent,  in  the  course  of  his  agency,  is  notice 
to  the  principal :  Hough  v.  Richardson,  3  Story  660 ;  Bowman  v.  Wathen, 
1  How.  195 ;  Astor  c.  Wells,  4  Wheat.  466  ;  Westervelt  ».  Haff,  2  Sandf. 
Ch.  98 ;  Watson  v.  Wells,  5  Conn.  468 ;  Bracken  v.  Miller,  4  W.  &  S.  108. 
See  Hood  v.  Fahnestock,  8  Watts  489.  But  it  must  generally  be  acquired 
.in  the  same  transaction:  Bracken  w.  Millar,  4  W.  &  S.  HI  5  Henry  c. 
Morgan,  2  Binn.  497  ;  Martin  v.  Jackson,  27  Penn.  St.  404.  See  Smith's 
Appeal,  47  Penn.  St.  128 ;  Espin  v.  Pemberton,  3  De  G.  &  J.  547.  Where 
the  agent  acts  for  both  parties,  it  is  notice  to  the  purchaser:  Sergeant  v. 
Ingersoll,  15  Penn.  St  343 ;  7  Id.  340. 

»  Murray  ».  Ballou,  1  John.  Ch.  566 ;  Murray  v.  Lylburn,  2  Id.  441 ; 
Zeiter  v.  Bowman,  6  Barb.  S.  C.  133  ;  Owongs  v.  Myers,  3  Bibb  279 ; 
Boiling  V.  Carter,  9  Ala.  921 ;  Green  v.  White,  7  Blackf.  242 ;  Tongue  v. 


OF    PRIORITIES,    ETC.  ,  333    , 

that  legal  proceedings  during  their  continuance,  are  pub- 
lically  known  throughout  the  realm."    But  no  lis  pendens, 

Morton,  6  Harr  &  John.  21  "Walker  v.  Batz,  1  Yeates  574 ;  Diamond  v. 
Lawrence  Co.,  37  Penn.  St.  353.  It  has  been  held,  however,  in  one  or  two 
cases,  that  the  doctrine  of  lU  pendens  was  inconsistent  with  the  policy  of 
the  recording  or  registration  acts  in  this  country  :  Newman  v.  Chapman, 
2  Rand.  93  ;  City  Council  r.  Page,  Spear's  Eq.  159.  In  King  v.  Bill,  28 
Conn.  593,  it  was  doubted  whether  the  doctrine  of  notice  by  lis  pendens- 
obtains  in  Connecticut.  The  principle  of  Us  pendens  is,  that  the  specific 
property  must  be  so  pointed  out  by  the  proceedings  as  to  warn  the  whole 
world  that  they  meddle  with  it  at  their  peril :  Lewis  v.  Mew,  1  Strobhart's 
Eq.  180.  See  Green  v.  Slayter,  4  John.  Ch.  38  ;  but  the  doctrine  does  not 
apply  in  a  case  where  the  Court  has  no  jurisdiction  of  the  thing  in  contro- 
versy :  Carrington  v.  Brents,  1  McLean  167  ;  and  it  stpplies  only  to  rights 
or  interests  acquired  from  a  party  after  the  institution  of  a  suit,  and  not  to 
the  case  of  a  right  previously  contingent  or  conditional  becoming  perfect : 
Hopkins  v.  McLaren,  4  Cow.  667  ;  Clarkson  v.  Morgan,  6  B.  Monr.  441. 
Lis  pendens  is  notice  only  in  relation  to  the  property  which  is  the  imme- 
diate subject  of  the  suit:  Edmonds  v.  Crenshaw,  1  McC.  Ch^252;  and  the 
property  affected  must  be  definitely  described :  Miller  v.  Shwry,  2  Wallace 
S.  C.  250 ;  and  can  only  affect  a  purchaser  from  the  party  to  the  suit  of 
the  subject  of  controversy :  French  v.  The  Loyal  Company,  5  Leigh  627. 
Notice  to  a  purchaser,  arising  from  a  bill  filed,  is  notice  of  what  the  bill 
contains,  and  nothing  more  :  GrifiBth  v.  GriflBth,  1  Hoff.  Ch.  153 ;  and  a  suit 
not  prosecuted  to  decree  or  judgment,  is  not  constructive  notice  to  a  person 
who  is  not  a  pendente  lite  purchaser :  Alexander  v.  Pendleton,  8  Cranch 
462  ;  but  the  pendency  of  a  suit  duly  prosecuted,  is  notice  to  a  purchaser 
of  the  subject  of  a  suit,  so  as  to  bind  his  interest ;  and  a  pendency  of  a 
suit  commenced  from  the  service  of  the  subpoena,  after  the  bill  is  filed : 
Murray  v.  Ballou,  1  John.  Ch.  566  ;  Goodwin  v,  McGehee,  15  Ala.  232; 
Lytle  V.  Pope,  11  B.  Monr.  318.  Publication  as  to  a  non-resident  defendant 
is  equivalent  to  service  of  subpoena :  Chaudron  v.  Magee,  8  Ala.  570. 
Notice,  however,  by  lis  pendens,  cannot  continue  after  a  final  decree  or 
judgment:  Blake  v.  Heyward,  1  Bailey's  Eq.  208;  Turner  v.  Crebill,  1 
Ohio  372 ;  Winborn  v.  Gorrell,  3  Ired.  Eq.  117.  See  on  this  subject  Hill 
on  Trustees,  4th  Am.  ed.,  794  ;  notes  to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas. 
Eq.  23.  The  doctrine  of  lis  pendens  has  been  recently  considered  in  the 
Court  of  Appeal  in  England,  and  finally  decided  not  to  stand  on  the  ground 
of  notice  express  or  implied,  but  to  follow  from  the  general  rule  that  pend- 
ing litigation,  neither  party  can  be  permitted  to  alienate  the  contested 
property,  so  as  to  affect  the  rights  of  the  other.  The  doctrine  in  question 
was  therefore  held,  not  to  apply  as  between  co-defendants  :  Bellamy  v. 
Sabine,  3  Jur.  N.  S.  943. 


334  ADAMS'S    DOCTRINE    OF    EQUITY. 

of  which  a  purchaser  has  not  express  notice,  will  now 
bind  him,  unless  it  be  duly  registered.  (/)  On  the  other 
hand,  a  final  decree  or  judgment  is  not  notice  ;(m)  nor  a 
fiat  in  bankruptcy^  (w)  nor  the  Court  Rolls  of  a  manor  ;(o) 
nor  the  registration  of  a  deed;  nor  the  docketing  or  the 
registration  of  a  judgment.  But  if  it  appear  that  a  search 
was  actually  made,  it  will  be  presumed  that  the  entry 
was  found,  and  the  purchaser  will  be  affected  with  notice 
r*1  ^9C\  ^^  ^^^  contents.  *In  the  absence  of  any  actual 
information  of  the  equity,  the  party  may  also  be 
affected  with  notice  by  information  of  any  fact  or  instru- 
ment relating  to  the  subject-matter  of  his  contract,  which 
if  properly  inquired  into  would  have  led  to  its  ascertain- 
-ment.^  If,  for  instance,  he  purchases  land  which  he 
knows  to  be  in  the  occupation  of  another  than  the 
vendor,  he  is  bound  by  all  the  equities  of  the  party  in 
occupation. 

If  he  knows  that  the  title  deeds  are  in  another  man's 
possession,  he  may  be  held  to  have  notice  of  their  pos- 
sessor's claim  on  the  estate.  If  he  knows  of  any  instru- 
ment, forming  directly  or  presumptively  a  link  in  the  title 
he  will  be  presumed  to  have  examined  it,  and  therefore  to 
have  notice  of  all  other  instruments  or  facts  to  which  an 
examination  of  the  first  could  have  led  him.  But  he  can- 
not be  presumed  to  have  examined  instruments  which  are 
not  directly  or  presumptively  connected  with  the  title, 
merely  because  he  knows  that  they  exist,  and  that  they 

(i)  3  Sug.  V.  &  P.  458  5  Shall  cross  o.  Dixon,  5  Jarm.  on  Conveyancing 
493;  2  Vict.  c.  11,  8.  7. 
(w)  2  Sug.  V.  &  P.  461. 
(n)  Hithcox  v.  Sedgwick,  3  V.  &  P.  467. 
(o)  3  V.  &  P.  478. 

^  See  notes  to  Le  Neve,  2  Lead.  Cas.  Eq.  ut  sup. 


OF    PRIORITIES,    ETC.  335 

may  by  possibility  affect  it,  for  that  may  be  predicated  of 
almost  any  instrument;  e.  g.,  if  he  be  informed  that  the 
vendor  made  a  settlement  on  his  marriage,  but  is  in- 
formed at  the  same  time  that  it  does  not  relate  to  the 
property,  he  is  not  bound  by  notice  of  its  contents.  The 
mere  want  of  caution  is  not  notice.  If  indeed  there  be 
a  wilful  abstinence  from  inquiry,  or  any  other  act  of 
gross  negligence,  it  may  be  treated  by  the  Court  as  evi- 
dence of  fraud;  but,  though  evidence  of  fraud,  it  is  not 
the  same  thing  as  fraud.  The  party  may  have  acted 
hondfide,  and  if  he  has  done  so  thore  is  no  equity  against 
him.  The  neglect,  therefore,  of  a  purchaser  to  inquire  for 
the  title  deeds  is  not  equivalent  to  notice  that  they  are 
deposited  with  the  mortgagee.  For  though  he  may  have 
acted  incautiously  in.  taking  a  coveyance  without  them, 
yet  the  other  party  has  been  equally  imprudent^  taking 
the  deeds  without  a  conveyance,  and  each,  in  the  absence 
of  fraud,  is  at  liberty  to  make  the  best  use  he  can  of  his 
imperfect  title.  In  conformity  with  the  same  principle, 
it  seems  that  the  mere  notice  of  a  fact,  which  may  or  may 
not,  according  to  circumstances,  be  held  *in  a  p^^-.  rq-i 
Court  of  equity  to  amount  to  fraud,  will  not  affect 
a  purchaser  for  value  denying  actual  notice  of  the  fraud. 
But  where  a  lease  was  granted  to  a  trustee  and  agent  at 
a  rent  palpably  below  the  value,  it  was  held  that  the  fact 
of  its  being  granted  at  such  undervalue,  coupled  with  a 
recital  that  it  was  for  faithful  services,  was  a  sufficient 
notice  to  the  purchaser  of  such  lease  to  put  him  on  his 
guard,  {p) 

We  have  now  considered  the  three  rules  of  superior 

{p)  Jones  V.  Smith,  1  Hare  43;  1  Ph.  244;  West  v.  Reid,  Id.  249; 
Borell  V.  Dann,  Id.  440 ;  Kerr  v.  Lord  Dungannon,  1  Conn.  &  L.  335 ;  3 
Sug.  V.  &  P.  468-480. 


336  ADAMS's    DOCTRINE     OF    EQUITY. 

equity  originating  in  contracts  in  rem,  wilful  misrepre- 
sentation, and  purchasers  without  notice.  If  no  superior 
equity  exists,  the  common  course  of  law  is  not  interfered 
with.  The  equities  are  equal,  and  the  law,  or  the  analogy 
of  law,  will  prevail. 

If  there  be  a  legal  right  in  either  party,  the  Court  of 
Chancery  remains  neutral;  as,  for  example,  if  the  pur- 
chaser of  property  without  notice  of  a  prior  equity  has 
procured  a  conveyance  of  the  legal  estate,  either  to  him- 
self or  to  an  express  trustee  for  him,  this  legal  estate  will 
secure  him  at  law,  and  his  priority  therefore  will  be  abso- 
lute over  all  claimants.^  A  similar  result  will  follow  if 
he  can  procure  the  assignment  of  an  outstanding  term,  or 
of  an  estate  by  elegit.  In  the  one  case  he  has  priority 
during  the  continuance  of  the  term;  in  the  other  until 
the  elegit  is  determined  at  law,  i.  e.,  until  the  judgment 
has  been  satisfied  at  the  extended  value,  which  is  always 
much  below  the  real.  It  has  been  enacted  by  the  late 
statute  that  the  duration  of  an  elegit  shall  in  future  be 
ascertained  at  law  by  a  computation  at  the  real,  and  not 
at  the  extended  value ;  but  this  enactment,  as  well  as  the 
other  statutory  changes  in  respect  to  judgment,  is  subject 
to  an  exception  in  favor  of  purchasers  without  notice.  (§') 

The  recent  enactment  as  to  the  cesser  of  outstanding 
terms,  when  they  become  attendant  on  the  inheritance, 

{q)  1  &  2  Vict.  c.  110 ;  2  &  3  Vict.  11,  s.  5. 

^  Sete  Story,  J,,  in  Flagg  v.  Mann,  2  Sumn.  557 ;  Gibler  v.  Trimble,  14 
Ohio  323.  In  Sergeant  v.  Ingersoll,  7  Penn.  St.  340 ;  15  Id.  343  ;  however, 
where  the  purchaser  of  an  equitable  title  got  the  legal  title  from  the 
trustee  at  the  same  time,  he  was  held,  nevertheless,  bound  by  a  covenant 
of  the  cestui  que  trust,  of  which  he  had  no  notice,  the  Court  being  of 
opinion  under  the  circumstances  that  the  separation  of  the  legal  and 
equitable  titles  was  so  suspicious  a  circumstance  that  it  ought  to  have  put 
him  on  inquiry. 


OF    PRIORITIES,    ETC.  387 

has  *been  already  explained,  (r)  If  a  purchaser  r^if^A-i 
without  notice  of  a  prior  equity,  fails  in  obtaining 
the  legal  estate,  he  may  still  protect  himself  to  some  ex- 
tent by  getting  possession  of  the  title  deeds,  whether  of 
the  fee  or  of  an  outstanding  term ;  for  the  possession  of 
the  deeds,  though  not  equivalent  to  ownership,  is  so  far 
available  at  law,  that  if  he  can  otherwise  get  possession 
of  the  estate,  it  may  serve  him  as  a  shield  to  protect  his 
holding,  or,  at  all  events,  may  so  far  inconvenience  his 
opponent  as  to  compel  the  satisfaction  of  his  claim,  {s)  If 
he  cannot  obtain  either  a  conveyance  or  the  deeds,  he 
may  take  his  chance  of  defects  in  his  opponent's  evidence, 
and  will  not  be  compelled  to  answer  a  bill  of  discovery,  (i^) 

If  there  be  no  legal  right  in  either  party,  the  Court  of 
Chancery  cannot  be  neutral ;  for  it  is  the  only  tribunal 
competent  to  take  cognisance  of  the  dispute.  In  this  case, 
therefore,  it  acts  on  the  analogy  of  law,  and  gives  priority 
to  that  title  which  most  nearly  approximates  to  a  legal 
one;  viz.,  to  an  executed  and  perfect  title  in  equity, 
rather  than  to  one  which  is  executory  and  imperfect.^ 

The  methods  by  which  a  title  may  be  perfected  in 
equity  differ  according  to  the  subject-matter  of  convey- 
ance. Where  an  equity  of  redemption,  whether  in  real 
or  personal  estate,  is  the  subject,  the  conveyance  will  be 
perfected  by  the  joinder  of  the  mortgagee,  and  by  his 

(r)  8  &9  Vict.  c.  112,  supra,  Attendant  Terms. 

(s)  Head  v.  Egerton,  3  P.  Wms.  280,  cited  2  Ves.  &  B.  83  ;  Wallwyn  v. 
Lee,  9  Ves.  24 ;  Bernard  v.  Drought,  1  Moll.  38. 
,  [t)  3  Sfig.  V.  &  P.  c.  xxiv. 

^  See  Bellas  v.  McCarty,  10  Watts  13.  Where  a  purchaser,  the  day  after 
the  completion  of  his  purchase,  deposited  the  title  deeds  by  way  of  equitable 
mortgage,  the  mortgagee  was  held  to  have  a  better  equity  than  the  vendor 
as  to  his  lien  for  unpaid  purchase-money  :  Rice  v.  Rice,  23  L.  J.  Ch.  289  ; 
2  Drew.  77. 
22 


338  ADAMS's    DOCTRINE    OF    EQUITY. 

declaration  that  the  purchaser  shall  be  entitled  to  re- 
deem, (m).  Where  a  trust  estate  in  realty  is  the  subject, 
the  conveyance  will  be  perfected  if  the  trustee  acknow- 
ledge a  trust  for  the  purchaser,  either  by  executing  a 
declaration  to  that  effect,  or  by  joining  in  the  conveyance 
of  his  cestui  que  trust,  though  without  purporting  to  pass 
n;j.-j  />1  -|  his  own  estate,  (v)  Where  a  trust  *estate  in  per- 
sonalty or  a  cJiose  in  action  is  the  subject,  the  as- 
signment is  perfected  by  notice  to  the  trustee  or  debtor, 
which  operates  as  a  constructive  transfer  of  possession,  (w)^ 
If,  in  any  of  these  cases,  the  party  acquiring  an  equitable 
interest  neglects  to  perfect  it  in  the  manner  pointed  out, 
he  incurs  the  risk  of  some  subsequent  purchaser  without 
notice  being  more  diligent,  and  thus  acquiring  a  priority 
over  him. 

It  has  been  contended,  that  on  the  conveyance  of  a 
trust  estate  in  realty,  notice  of  such  conveyance  may  be 
given  to  the  trustee,  and  that  the  title  will  be  thereby 
perfected,  so  as  to  exclude  a  subsequent  purchaser  from 
obtaining  priority.  The  probability  is,  that  a  notice  so 
given  would  practically  prevent  a  priority  being  gained, 
because  few  persons  would  purchase  without  inquiring  of 
the  trustee,  and  few  trustees  would  convey  the  legal 
estate  after  such  a  notice  had  come  to  their  hands.     But 

(m)  3  Sug.  V.  &  P.  422. 

(r)  Maundrell  v.  Maundrell,  10  Ves.  246,  270  ;  Wilmot  v.  Pike,  5  Hare 
14,22,    . 

(w)  Dearie  v.  Hall,  3  Russ.  1 ;  Foster  v.  Cockerell,  3  CI.  &F.  456  ;  Tim- 
son  V.  Ramsbottom,  2  K.  35  ;  Meux  v.  Bell,  1  Hare  73  ;  Etty  v.  Bridges,  2 
N.  C.  C.  486  ;  Holt  V.  Dewell,  4  Hare  446  ;  Gardners.  Lachlan,  4  M.  &  C, 
129;  Ex  parte  Arkwright,  3  M.,  D.  «fe  D.  129,  141  ;  [Consolidated  Co.  v. 
Riley,  1  <5iff.  371  ;  Barr's  Trusts,  4  K.  &  J.  219 ;  Scott  v.  Hastings,  Id. 
633.] 

^  Notice  to  the  debtor  is  not  generally  considered  necessary  in  the  United 
States  to  perfect  the  assignment  of  a  chose  in  action.     See  ante,  53,  note- 


OF    PRIORITIES,    ETC.  339 

assuming  that  the  purchase  were  made  without  inquiry, 
and  that  the  trustees  were  afterwards  induced  to  convey 
the  estate,  the  notice  seems  immaterial ;  for  it  is  merely 
a  constructive  taking  possession  of  the  estate,  and  there- 
fore can  have  no  greater  effect  in  equity  than  possession 
without  conveyance  would  have  had  at  law.(^) 

It  has  been  already  stated,  that  in  order  to  avoid  the 
postponement  of  the  latter  equity,  freedom  from  notice 
is  indispensable.  The  notice,  however,  here  referred  to, 
is  a  notice  existing  at  the  acquirement  of  the  equity,  not 
a  notice  at  the  completion  of  the  right.  The  latter  pur- 
chaser or  encumbrancer,  on  payment  of  his  money,  be- 
comes an  honest  claimant  in  equity,  and  is  entitled,  if  he 
can,  to  protect  his  claim.  But  he  is  not  bound  to  look  for 
protection  *until  he  has  ascertained  that  danger  p^-,  ^o-i 
exists  ;  and  his  right  to  obtain  it  will  continue, 
notwithstanding  the  institution  of  a  suit  to  settle  the 
priorities  of  the  conflicting  claimants.  A  decree,  however, 
to  settle  priorities,  is  a  bar  to  any  protection  being  after* 
wards  gained;  for  it  is  in  effect  a  judgment  for  all  the  claim- 
ants, according  to  the  order  in  which  they  then  stand,  (y) 

If  there  be  no  legal  right,  or,  in  respect  of  equitable 
subject-matter,  no  perfect  equitable  right  in  any  of  the 
claimants,  as,  for  example,  if  the  estate  be  still  outstand- 
ing in  the  original  owner,  or  in  some  third  person  not  con- 
stituted a  trustee  for  any  claimant  individually,  the  claims 
will  be  satisfied  in  order  of  date.(^) 

(ar)  Peacock  r.  Burt,  Coote  on  Mortgages,  Appendix  ;  Jones  r.  Jones,  8 
Sim.  633 ;  Wilmot  v.  Pike,  5  Hare  14 ;  Wiltshire  v.  Rabbits,  14  Sim.  76  5 
Ex  parte  Knott,  11  Ves.  609,  612 ;  2  Sug.  V.  &  P.  83. 

{]/)  Brace  r.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Wortley  v.  Birk- 
head,  2  Ves.  571  ;  Belchier  r.  Butler,  1  Eden  523;  Ex  parte  Knott,  11  Ves. 
609,  619. 

(z)  Brace  r.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Frere  v.  Moore, 


340  ADAMs's    DOCTRINE    OF    EQUITY. 

The  same  rule  seems  applicable  to  cases  where,  in  re- 
specf  of  legal  subject-matter,  both  the  titles  are  legal,  and 
the  jurisdiction  of  Chancery  is  not  to  enforce  an  equity, 
but  to  give  the  same  relief  as  at  law  by  more  convenient 
means.  On  this  principle,  a  plea  of  purchase  without  no- 
tice has  been  held  inapplicable  to  a  bill  for  assignment  of 
dower,  or  for  an  account  of  tithes,  although  the  soundness 
of  the  decision  has  been  questioned.  («)  And  it  would 
seem  also  that  a  bill  to  perpetuate  testimony  may  be  sus- 
tained, notwithstanding  that  the  defendant  is  a  purchaser 
without  notice ;  for  such  a  bill  asks  no  relief  or  discovery 
from  the  defendant,  but  merely  prays  to  secure  the  testi- 
mony, which  might  be  had  at  the  time  if  the  circum- 
stances called  for  it.  {by 

8  Price  475;  commented  on,  3  Sug.  V.  &  P.  SI,  422;  Jones  ».  Jones,  8 
Sim.  633. 

(a)  Collins  v.  Archer,  1  R.  &  M.  284  ;  3  Sug,  V.  &  P.  495  ;  Hare  on  Dis- 
covery 98. 

(6)  Seaborne  v.  Clifton,  cited  6  Ves.  263 ;  3  Sug.  V.  &  P.  438 

^  The  prevailing  doctrine  in  the  United  Stales  is,  that  the  purchaser  of 
an  equitable  title  takes  it  subject  to  all  prior  equities:  Snelgrove  v.  Snel- 
grove,  4  Dessaus.  274;  Winborn  v.  Gorrell,  3  Ired.  Eq.  117;  Shirras  v. 
Craig,  7  Cranch  48  ;  Vattier  v.  Hinde,  7  Peters  252 ;  Boone  v.  Chiles,  10 
Id.  177;  Hallett  v.  Collins,  10  How.  U.  S.  185;  Chew  v.  Barnet,  11  S. 
&,  R.  389 ;  Kramer  v.  Arthurs,  7  Penn.  St.  165  ;  Sergeant  v.  Ingersoll,  Id. 
.347  ;  s.  c.  15  Penn.  St.  343.  And  the  plea  of  purchase  without  notice, 
■would  not,  therefore,  be  sufficient  in  such  case.  But  the  principle  just  be- 
fore stated  in  the  text  (p.  160),  that  "if there  be  no  legal  right  in  either 
party,"  the  tjourt  "  acts  on  the  analogy  of  law,  and  gives  priority  to  that 
title  which  most  nearly  approximates  to  a  legal  one,"  was  substantially 
followed  in  Bellas  v.  McCarty,  10  Watts  13,  where  a  purchaser  of  the  equi- 
table estate  in  land  under  articles  of  agreement,  who  had  recorded  his 
deed  (such  an  interest  being  within  the  recording  acts  of  Pennsylvania), 
was  preferred  to  a  prior  sherifiTs  vendee  of  the  same  interest,  who  had 
neglected  to  have  his  deed  registered.  And  this  was  approved  in  Rhines 
V,  Baird,  41  Penn.  St.  265,  where  the  doctrine  in  Chew  v.  Barnet,  supra, 
was  said  to  be  contrary  to  the  policy  of  the  recording  acts.  So  in  Flagg 
V.  Mann,  2  Sumn.  486,  it  was  the  opinion  of  Story,  J.,  though  the  point 


OF    PRIORITIES,     ETC,  341 

The  maxim  of  non-interference  between  equal  equities 
is  the  foundation  of  the  doctrine  of  Tacking  in  Equity,^ 

•was  not  directly  decided,  that  a  purchaser  of  an  equity  who  subsequently 
obtains  a  conveyance  from  the  trustee,  is  protected  against  any  antecedent 
secret  trust  of  which  he  has  no  notice.  See  also,  the  note  to  Bassett  ». 
Xosworthy,  2  Lead.  Cas.  Eq.,  part  i.,  97,  where  this  subject  is  discussed  ; 
though,  notwithstanding  some  doubts  suggested  by  the  learned  American 
editor  of  the  work  above  cited,  it  appears  to  be  clear  upon  the  authorities 
both  in  this  country  and  in  England,  that,  except  in  the  cases  just  put, 
among  equal  equities,  the  prior  in  time,  whether  it  be  original  or  interme- 
diate, is  the  prior  in  right. 

It  has  been  held  in  some  cases  in  the  United  States,  following  certain  of 
the  English  decisions,  such  as  AVilliams  v.  Lambe,  3  Bro.  C.  C.  264,  and 
Collins  V.  Archer,  1  Euss.  &  Mylne  284,  that  a  plea  of  a  purchase  for  a 
valuable  consideration  is  no  defence  in  equity  to  a  claim  under  a  legal 
title  :  Snelgrove  v.  Snelgrove,  4  Dessaus.  274  ;  Blake  v.  Heyward,  1  Bail. 
Eq.  208  ;  Larrowe  f.  Beam,  10  Ohio  498  ;  Jenkins  v.  Bodley,  1  Sm.  &  M. 
Ch.  338 ;  Wailes  v.  Cooper,  24  Miss.  208  ;  Brown  r.  Wood,  6  Rich.  Eq. 
155.  But  an  opposite  doctrine  has  been  held  in  a  number  of  cases,  and 
principally  in  Wallwyn  v.  Lee,  9  Ves.  24 ;  Joyce  ».  De  Moleyns,  2  Jones 
&  Lat.  374 :  Stackhouse  v.  The  Countess  of  Jersey,  1  John.  &  H.  721 ; 
Att.-Gen.  v.  Wilkins,  17  Beav.  285 ;  see  also,  Flagg  v.  Mann,  ut  supr.  In 
the  very  recent  case  of  Finch  v.  Shaw,  18  Jur.  935,  19  Beav.  500,  an  attempt 
was  made  to  reconcile  the  conflicting  authorities  on  this  question.  "  The 
true  distinction,"  said  the  Master  of  the  Rolls,  "  appears  to  be  this:  where 
the  suit  is  for  the  enforcement  of  a  legal  claim,  and  the  establishment  of 
a  legal  claim,  there,  although  the  court  may  have  jurisdiction  in  the  mat- 
ter, it  will  leave  the  parties  to  their  remedies  at  law ;  but  where  the  legal 
title  is  perfectly  clear  and  distinct,  and  attached  to  that  legal  title  is  an 
equitable  remedy,  or  an  equitable  right,  which  can  only  be  enforced  in 
this  court,  I  am  not  aware  of  any  case  in  which  the  legal  title  being  clearly 
established,  this  court  refuses  to  enforce  the  equitable  remedy  which  at- 
taches to  it."  It  was  accordingly  decided  that  the  plea  of  purchase  for  a 
valuable  consideration  was  no  answer  to  a  bill  by  a  legal  mortgagee  for 
foreclosure.  This  case  was  aflSrmed  in  the  House  of  Lords,  under  the  name 
of  Colyer  v.  Finch,  5  H.  L.  Cas.  905.  See  also,  Carter  v.  Carter,  3  K.  & 
J.  917,  where  the  authorities  are  reviewed. 

1  See  Lloyd  v.  Attwood,  3  De  G.  &  J.  614.  The  English  doctrine  of 
tacking  mortgages  does  not  generally  apply  in  the  United  States  :  Bridgen 
r.  Carhartt,  Hopkins  234  ;  Grant  r.  U.  S.  Bank,  1  Cai.  Ca.  E.  112 ;  Siterft 
Co.  p.  McClauachan,  2  Grat.  (Va.)  280 ;  Brazee  and  Others  r.  Lancaster 
Bank,  14  Ohio  318 ;  Osborn  v.  Carr,  12  Conn.  196 ;  Chandler  r.  Dyer,  37 


/ 


342  ADAMS's    DOCTRINE    OF    EQUITY. 

rnqpon  The  *cases  to  which  this  doctrine  applies  are 
those  where  several  encumbrances  have  been 
created  on  an  estate,  and  two  or  more  of  them,  not  im- 
mediately successive  to  each  other,  have  become  vested 
in  a  single  claimant. 

Under  these  circumstances  the  question  arises,  whether 
an  intermediate  claimant  may  redeem  one  of  such  encum- 
brances, and  postpone  the  other  to  his  own  charge,  or 
whether  the  party  holding  the  two  may  tack  or  consoli- 
date them,  so  that  the  earlier  in  date  cannot  be  separately 
redeemed.  The  doctrine  on  this  subject  is,  that  if  the 
double  encumbrancer  is  clothed  Avith  a  legal  or  superior 
equitable  right,  he  may,  as  against  the  mesne  claimants 
tack  to  his  original  claim  a  claim  for  any  further  amount 
due  to  him  in  the  same  character,  which  was  advanced 
expressly  or  presumptively  on  credit  of  the  estate  with- 
out notice  of  the  mesne  equity.  If,  for  example,  a  third 
mortgagee,  having  advanced  his  money  without  notice  of 
a  second  mortgage,  should  afterwards  get  a  conveyance  of 
the  legal  estate  from  the  first  mortgagee,  the  second  mort- 
gagee would  not  be  permitted  to  redeem  the  first  mort- 
gage, after  forfeiture  at  law,  without  redeeming  the  third 
also. 

It  is  essential  to  the  existence  of  this  equity  that  there 
shall  be  a  legal  right  in  the  party  claiming  to  tack,  or  such 
a  superior  equitable  right  as  gives  him  a  preferable  claim 

Verm.  3.45;  Anderson  v.  Neff,  11  S.  &  R.  223;  it  being  inequitable  and 
unjust  in  itself,  and  the  system  of  registration  being  adopted  throughout 
the  Union  ;  though  the  point  seems  doubtful  in  Kentucky :  Nelson  v.  Boyce, 
7  J.  J.  Marsh.  401 ;  Averill  v.  Gulhrie,  8  Dana  82.  In  some  of  the  states, 
further  advances  to  the  mortgagee,  for  -vvhich  a  bond  binding  the  heirs^has 
been  given,  may  be  tacked  to  the  mortgage  as  against  an  heir  or  devisee, 
though  not  as  against  intervening  encumbrancers.  See  note  to  Marsh  v. 
Jice,  1  Lead.  Cas.  Eq.  494,  where  the  cases  are  collected. 


OF    PRIORITIES,    ETC.  343 

fo  the  legal  estate ;  (c)  that  both  the  claims  shall  be  vested 
in  him  in  the  same  character,  and  not  the  one  in  his  own 
right,  and  the  other  as  executor  or  trustee  ;(^)  and  that 
the  advance,  in  respect  of  which  the  equity  is  claimed, 
shall  have  been  made  expressly  or  presumptively  on  the 
credit  of  the  estate  without  notice  of  the  mesne  equity. 
It  seems  doubtful  what  would  be  the  effect  of  such  noticfe, 
where  a  mortgage  has  been  made  for  a  specific  sum,  with 
a  clause  extending  the  security  to  future  advances,  and 
such  future  advances  had  been  made  after  notice  of  an 
intermediate  *charge.(^)  It  may,  however,  be  y^^^.-. 
observed,  that  in  such  a  case  the  priority  of  the  •-  -• 
future  advances,  if  sustained,  would  not  be  based  on  the 
equity  of  tacking,  but  on  the  construction  of  the  security 
itself,  as  incorporating  such  advances  with  the  original 
loan.^ 

The  requirement  that  the  moneys  shall  have  been  ad- 
vanced on  the  credit  of  the  estate,  is  obviously  complied 
with  in  the  instance  already  given,  where  the  second 
advance  is  made  on  mortgage.  But  it  is  not  confined  to 
mortgages :  it  extends  also  to  advances  on  judgment  or 
statute,  where  the  creditor  was  previously  a  mortgagee; 
for  it  is  presumed  in  such  a  case  that  the  prospect  of  tack- 
ing was  in  his  contemplation  at  the  time.  It  does  not,  on 
the  other  hand,  include  advances  on  judgment  or  statute, 
where  the  creditor  was  not  previously  a  mortgagee,  unless 
the  judgment  has  been  matured  under  the  statute  into  a 
charge  by  contract,  for  a  creditor  by  judgment  or  statute 

(c)  Willoughby  v.  Willoughby,  1  Term  763  ;  3  Sug.  V.  &  P.  83. 

{d)  Barnett  v.  Weston,  12  Ves.  130  ;  Morret  v.  Paske,  2  Atk.  52.  [See 
Tassell  v.  Smith,  2  De  G.  &  J.  713.]  , 

(e)  Gordon  r.  Graham,  7  Vin.  Abr.  52,  E.  pi.  3 ;  Blunden  v.  Desart,  2 
Conn.  &  L.  Ill,  131. 

'  As  to  the  incorporation  of  future  advances  in  a  mortgage  security,  see 
ante,  note  to  p.  110. 


344  ADAMS'S    DOCTRINE    OF    EQUITY. 

does  not  lend  his  money  on  contemplation  of  the  land; 
and  cannot,  therefore,  by  getting  in  a  prior  mortgage, 
convert  a  personal  loan  into  a  real  encumbrance.  (/)  It 
is  otherwise  if  redemption  is  asked  by  the  debtor  himself; 
for  then  the  equity  bf  tacking  is  in  the  nature  of  an  equit- 
able elegit,  and  is  the  proper  method  of  enforcing  the 
creditor's  claim.  (^)  For  the  same  reason  a  bond-debt 
may  be  tacked  as  against  the  heir  or  devisee,  unless  other 
creditors  would  be  thereby  prejudiced;  for  the  equity  of 
redemption  is  assets  in  his  hands.  And  if  a  chattel  real 
be  mortgaged,  a  simple  contract  debt  may  be  tacked  as 
against  the  personal  representative.  The  same  right 
would,  perhaps,  be  now  allowed  under  3  &  4  Wm.  4,  c. 
104,  as  against  the  heir  or  devisee,  when  there  is  not  a 
devise  for  payment  of  debts.  *If  the  heir  or 
•-  -I  devisee  has  aliened  the  equity  of  redemption,  it 
is  not  assets  in  the  hands  of  the  alienee,  and  the  mort- 
gage may  be  redeemed  alone.  (7^) 

It  is  also  held,  that  an  equity  in  the  nature  of  tacking 
accrues  where  two  mortgages  of  different  estates  are 
made  to  one  person,  or  being  originally  made  to  two 
become  vested  in  one,  whilst  the  equities  of  redemption 
remain  united  in  a  single  hand.  In  such  "a  case,  neither 
the  mortgagor,  nor  any  person  making  title  under  him, 
can  after  forfeiture  redeem  one  without  redeeming  both.(^y 

(y)  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Baker  ».  Harris, 
16  Ves.  397  •  Ex  parte  Knot,  11  Id.  609,  617. 

{g)  Supra.     Equitable  fieri  facias  and  elegit. 

(A)  Coleman  r.  Winch,  1  P.  Wms.  775  ;  Morret  ».  Paske,  2  Atk.  52 ; 
Adams  v,  Claxton,  6  Ves.  226  ;  Coote  on  Mortgages,  402. 

(t)  Margrave  ».  Le  Hooke,  2  Vern.  207;  Pope  ».  Onslow,  2  Id.  286; 
Jones  V.  Smith,  2  Ves.  Jr.  372,  376  ;  Ireson  ».  Denn,  2  Cox  425 ;  White  v. 
Hilacre,  3  Y.  &  C.  597 ;  Grugeon  v.  Gerrard,  4  Id,  119;  Coote  on  Mort- 
gages 483-491. 

'  See,  on  the  subject  of  Tacking:  Neve  v.  Pennell,  2  Hem.  &  M.  170; 
Lloyd  e.  Attwood,  3  De  G.  &  J.  614 ;  Bates  v.  Johnson,  Johnson  304. 


OF    RE-EXECUTION,     ETC.  345 


*CH AFTER    V.  [*166] 

OF   RE-EXECUTION,    CORRECTION,    RESCISSION,    AND 
CANCELLATION. 

The  subjects  hitherto  considered  in  the  present  Book 
are  the  equities  of  trust,  contract,  and  mortgage,  and  the 
incidental  doctrines  of  conversion  and  priority.  In  con- 
sidering these  subjects  we  have  assumed,  that  the  original 
transaction  and  its  evidence  are  unimpeached  and  clear, 
and  that  the  relief  asked  is  merely  the  enforcement  of  a 
consequent  equity.  If  the  instrument  evidencing  a  trans- 
action is  destroyed  or  lost,  if  through  mistake  or  accident 
it  has  been  incorrectly  framed,  or  if  the  transaction  is 
vitiated  by  illegality  or  fraud,  or  as  having  been  carried 
on  in  ignorance  or  mistake  of  facts  material  to  its  opera- 
tion, a  new  equity  arises  to  have  the  instrument  re- 
executed,  the  error  corrected,  or  the  vicious  transaction 
rescinded  and  set  aside.  The  equities  for  such  re-execu- 
tion, correction,  and  rescission,  like  the  equity  for  per- 
formance in  specie,  are  incapable  of  enforcement  at 
common  law,  and  fall,  therefore,  within  the  province  of 
the  Court  of  Chancery. 

The  jurisdiction  for  re-execution  and  other  similar  relief 
arises,  not  only  on  a  destruction  or  concealment  by  the 
defendant,  but  also  on  an  accidental  destruction  or  loss, 
where  the  missing  instrument  is  such,  that  its  non- 
production  would  perpetuate  a  defect  of  title,  or  would 


346  ADAMs's    DOCTRINE    OF    EQUITY. 

preclude  the  plaintiff  from  recovering  at  law.^  If,  for 
instance,  a  conveyance  to  a  purchaser  has  been  acciden- 
r*1fi71  ^^^^y  burned,  so  *that  the  purchaser  is  unable  to 
show  a  title  to  the  estate,  the  vendor  may  be 
compelled  to  reconvey.(a)^ 

The  most  ordinary  instances  in  which  this  jurisdiction 
is  exercised,  are  those  of  lost  bonds  and  negotiable  secu- 
rities, the  non-production  of  which  would  defeat  an  action. 
And  in  these  cases  the  decree  is  not  confined  to  re- 
execution,  but,  to  avoid  circuity  of  action,  extends  to 
payment.  In  order,  however,  that  the  jurisdiction  may 
attach,  it  is  essential  that  an  affidavit  be  annexed  to  the 
bill,  averring  that  the  instrument  is  destroyed  or  lost,  or 
that  it  is  not  in  the  plaintilj's  custody  or  power,  and  that 
he  knows  not  w^here  it  is,  unless  it  is  in  the  hands  of  the 
defendant.^  The  same  facts  must  be  also  admitted  or 
proved  at  the  hearing ;  for  the  instrument,  if  in  existence, 
would  be  cognisable  at  law,  and  the  alleged  loss  or  de- 
struction is  the  only  ground  for  shifting  the  jurisdiction 

(a)  Bennett  v.  Ingoldsby,  Finch  262 ;  2  Sug.  V.  &  P.  98. 

^  And  the  loss  of  an  article  of  agreement  containing  mutual  covenants  is 
sufficient  to  confer  jurisdiction  on  a  Court  of  Chancery  in  favor  of  the  in- 
jured party:  Bolware  v.  Bolware,  1  Litt.  124 ;  see  Owen  v.  Paul,  16  Ala.  130. 

^  But  a  bill  for  the  re-execution  of  a  deed  of  land,  lost  or  destroyed  while 
in  the  possession  of  the  grantee,  cannot  be  sustained  unless  there  be  some 
additional  grounds  for  relief:  Hoddy  v.  Hoard,  2  Carter  (Ind.)  474. 

"  In  a  suit  in  Chancery  praying  relief  for  a  lost  writing,  though  strictly 
the  party  should  make  affidavit  of  loss :  Chewing  v.  Singleton,  2  Hill  Eq. 
371 ;  Hill  V.  Lackey,  9  Dana  81 5  Owen  v.  Paul,  16  Ala.  130 ;  Pennington 
V.  The  Governor,  1  Blackf.  78 ;  yet,  if  the  proof  of  the  loss  is  clear,  the 
affidavit  may  be  dispensed  with:  Graham  v.  Hackwith,  1  A.  K.  Marsh. 
424;  Paf-sons'  Adrar.  v.  Wilson,  2  Tenn.  260;  Webb  v.  Bowman's  Ex'rs., 
3  J.  J.  Marsh.  73.  In  Lawrence  v.  Lawrence,  42  N.  H.  109,  where  there 
was  a  decree  for  the  re-execution  of  a  lost  mortgage,  the  defendant  was 
ordered  to  pay  the  costs,  because  he  had  improperly  denied  the  existence 
of  the  mortgage. 


OF    RE-EXECUTION,     ETC.  347 

into  Chancery.  If  the  relief  sought  extends  merely  to 
the  (leliA'ery  of  the  instrument,  or  is  otherwise  such  as 
can  only  be  given  in  a  Court  of  equity,  the  afifidavit  is 
not  required,  (i)  We  have  already  seen,  that  a  similar 
affidavit  is  requisite  where  a  bill  is  filed  for  an  examina- 
tion de  bene  esse,  as  auxiliary  to  an  action  at  law.(e) 

The  jurisdiction  in  the  case  of  lost  bonds  originates  in 
the  doctrine  of  profert  at  law.  It  was  anciently  a  rule  of 
pleading  in  the  common  law  Courts,  that  they  could  give 
no  remedy  for  a  debt  secured  by  bond,  unless  the  creditor 
offered  to  produce  his  bond  in  Court.  This  was  called 
making  profert  of  the  bond.  If  the  bond  were  lost,  pro- 
fert was  impossible ;  and  the  remedy  at  law  was  gone. 
But  the  Court  of  Chancery,  on  proof  that  the  bond  was 
really  lost,  entertained  jurisdiction  to  compel  its  re-execu- 
tion and  payment  of  the  money  secured.  The  rule 
requiring  profert  is  now  dispensed  with  at  law  in  the  event 
of  loss ;  but  the  ^change  of  practice  at  common  y*-,  /,  o-i 
law  does  not  annul  the  jurisdiction  in  equity.  (J)^ 

The  jurisdiction  in  the  case  of  negotiable  securities 
originates  in  a  different  way.  These  securities  not  being 
under  seal,  are  so  far  different  from  a  bond,  that  in  an 
action  brought  on  them  at  common  law,  it  has  never  been 
requisite  to  make  profert.  An  action  may  be  commenced 
on  a  bill  or  note,  a  plea  called  for,  and  the  cause  brought 
on  for  trial,  without  production  being  offered  or  made. 
And  therefore,  up  to  this  point,  there  is  no  ground  for 

(6)  Mitf.  124.  (c)  Supra,  Examination  de  bene  esse, 

{d)  Ex  parte  Greenway,  6  Ves.  812 ;  East  India  Company  v.  Bodham,  9 
Id.  464. 

^  See  Shields  i".  Commonwealth,  4  Rand.  541.  And  the  finding  of  the 
lost  bond  or  note  after  a  suit  in  Chancery  is  instituted  does  not  oust  the 
chancellor  of  his  jurisdiction  :  Crawford  v.  Summers,  3  J.  J.  Marsh.  300; 
Miller  v.  Wells,  5  Missouri  6  ;  Hamlin  v.  Hamlin,  3  Jones'  Eq.  191. 


348  ADAMS's    DOCTRINE    OF    EQUITY. 

equitable  interference.  If,  however,  the  bill  or  note  be 
negotiable,  it  follows,  that  a  plaintiff  alleging  it  to  have 
been  lost,  may,  in  fact,  have  assigned  it  to  a  third  party, 
against  whose  claim  the  Court  of  law  cannot  indemnify  the 
debtor.  For  this  reason  it  is  held  at  law,  that  a  plaintiff 
suing  on  a  negotiable  instrument  shall  not  recover  the 
amount,  unless  he  delivers  up  the  security.  And  there- 
fore a  Court  of  equity,  which  can  enforce  a  proper  indem- 
nity from  the  plaintiff,  will  entertain  jurisdiction  to  compel 
payment  on  such  indemnity  being  given.  If  the  security 
be  not  negotiable,  its  loss  will  not  prevent  the  creditor 
from  recovering  at  law,  and  will  not  therefore  create  a 
jurisdiction  in  equity. (e)^ 

The  jurisdiction  to  correct  written  instruments  which 
have  been  erroneously  framed  is  obviously  appropriate  to 
equity  alone.  A  Court  of  law  may  construe  and  enforce 
the  instrument  as  it  stands,  or  may  set  it  aside  altogether 
if  there  be  adequate  cause.  But  it  cannot  compel  any 
alteration  to  be  made;  and  avoidance  of  the  entire 
instrument  would,  in  the  case  which  we  are  now  con- 
sidering, be  a  nullification,  and  not  an  affirmance,  of  what 
was  really  meant.^ 

(e)  Hansard  w.  Robinson,?  B.  &  C.  90  (14  E.  C.  L.  R.)  ;  Macartney  v. 
Graham,  2  Sim.  285 ;  Walmsley  v.  Child,  1  Ves.  341 ;  Glynn  v.  Bank  of 
England,  2  Id.  38 ;  Mossop  v.  Eadon,  16  Id.  430. 

^  The  loss  of  a  negotiable  note  is  a  ground  for  equitable  relief:  Irwin  v. 
The  Planter's  Bank,  1  Humph.  145;  Tindall  v.  Childress,  2  St.  &  Porter 
250;  Smith  «.  Walker,  1  Sm.  &  Marsh.  Ch.  432;  Chewning  v.  Singleton,  '2 
Hill  Eq.-371 ;  Savannah  Nat.  Bank  v.  Haskins,  101  Mass.  370.  But  if  the 
note  has  not  been  negotiated  at  bank,  the  bill  must  contain  an  allegation 
of  all  the  facts  necessary  to  be  shown  to  manifest  due  diligence  in  at- 
tempting to  obtain  the  money  from  the  assignor :  "West  v.  Patton,  Litt. 
Sel.  Cas.  405.  The  general  rule  is  the  same  as  to  bonds  :  Kerney  v.  Kei-ney, 
6  Leigh  478  ;  Harrison  v.  Turbeville,  2  Humph.  242  ;  Rich  v.  Catterson, 
2  J«  J.  Marsh.  135.  See,  as  to  statutory  bonds :  Webb  v.  Bowman,  3  J.  J. 
Marsh.  70. 

^  The  present  English  rule  in  regard  to  the  reformation  of  instruments 


OF    CORRECTION,  349 

*The  most  obvious  and  easy  exercise  of  this    r*-|£>q-i 
jurisdiction  is  where  an  instrument  has  been  exe- 

is  well  stated  by  the  Chancellor  in  Fowler  v.  Fowler,  4  De  G.  &  J.  265 : 
"It  is  clear,*'  he  says,  "  that  a  person  who  seeks  to  rectify  a  deed  on  the 
ground  of  mistake  must  be  required  to  establish  in  the  clearest  and  most 
satisfactory  manner  that  the  alleged  intention  to  which  he  desires  it  to  be 
made  conformable  continued  concurrently  in  the  minda  of  all  parties 
down  to  the  time  of  its  execution,  and  also  must  be  able  to  show  exactly 
and  precisely  the  form  to  which  the  deed  ought  to  be  brought."  See 
also  Malmesbury  v.  Malmesbury,  31  Beav.  417 ;  Clark  r.  Malpas,  31  L.  J. 
Ch.  (X.  S.)  696;  Garrard  v.  Frankel,  30  Beav.  459;  Bradford  v.  Romney, 
Id.  431. 

In  the  United  States  there  is  no  question  as  to  the  jurisdiction  of  a  Court 
of  equity  to  reform  a  written  instrument,  on  the  ground  of  mistake,  upon 
parol  evidence,  where  no  statutory  provision  intervenes  :  Gillespie  v.  Moon, 
2  John.  Ch.  585  ;  Xewsom  v.  Bufferlow,  1  Dev.  Eq.  379 ;  Shipp  r.  Swann, 
2  Bibb  82;  Bellows  v.  Stone,  14  N.  H.  175 ;  and  cases  collected  in  note  to 
"Woollam  V.  Hearn,  2  Lead.  Cas.  Eq.  (3d  Am.  ed.)  684 ;  Bradford  v.  Union 
Bank  of  Tennessee,  13  How.  U.  S.  57 ;  Bunnell  v.  Read,  21  Conn.  586  ; 
Stedwell  v.  Anderson,  21  Id.  139 ;  Craig  v.  Kittredge,  3  Foster  231 ; 
Lavender  v.  Lee,  14  Ala.  688  ;  Wall  v.  Arrington,  13  Geo.  88  ;  see  Miller 
V.  Fichthorn,  31  Penn.  St.  252 ;  Wesley  v.  Thomas,  6  Har.  &  J.  23 ;  see 
Tilton  V.  Tilton,  9  X.  H.  385 ;  Durant  v.  Bacot,  2  Beas.  201  ;  Hook  v.  Craig- 
head, 32  Missouri  405 ;  Gump's  Appeal,  65  Penn.  St.  476 ;  Firmstone  v. 
DeCamp,  2  Green  (N.  J.)  317.  Though  the  evidence  must  be  very  strong, 
clear  and  precise,  especially  where  it  is  against  the  answer :  Reese  r. 
Wyman,  9  Geo.  430 :  Mosby  v.  Wall,  23  Miss.  81 ;  Ligon's  Admr,  v.  Rogers, 
12  Geo.  281 ;  Galdsborough  v.  Ringgold,  1  Md.  Ch.  239 ;  Beard  v.  Hubble, 
9  Gill  420 ;  Lea's  Exrs.  v.  Eidson,  9  Gratt.  277 ;  U.  S.  v.  Monroe,  5  Mason 
572 ;  Lyman  v.  Ins.  Co.,  17  John.  373 ;  Preston  v.  Whitcomb,  17  Verm. 
183  ;  Greer  v.  Caldwell,  14  Geo.  207  ;  Leikensdorfer  v.  Delphy,  15  Mo.  160; 
Carnall  v.  Wilson,  14  Ark.  482 ;  Coffing  ».  Taylor,  16  III.  457  ;  Wright  v. 
Delafield,  23  Barb.  (X.  Y.)  498;  Wemple  v.  Stewart,  23  Id.  498;  Farley 
V.  Bryant,  32  Maine  474 ;  Tucker  v.  Madden,  44  Id.  206  ;  Adams  v.  Rob- 
ertson 37  111.,  45  ;  Clearly  v.  Babcock,  41  111.  271 ;  Goltra  v.  Sanasack,  35 
Id.  456  ;  Shively  v.  Welch,  2  Oregon  288 ;  Edmonds'  Appeal,  59  Penn.  St. 
220.  A  Court  of  equity  relieves  more  readily  against  a  mistake  in  the 
execution  of  a  power  than  in  a  contract:  Oliver  v.  Mutual  Coram.  Marine 
Ins.  Co.,  2  Curtis  C.  C.  277.  A  misunderstanding  of  the  facts  is  not 
sufficient  ground  for  asking  a  reformation  of  a  contract ;  fraud  or  mistake 
is  indispensable  :  Story  v.  Conger,  36  X.  Y.  673. 

As  to  the  parties  against  whom  equity  will  afford  this  relief,  they  con- 


350  ADAMS's    DOCTRINE     OF     EQUITY. 

cuted  in  order  to  the  performance  of  a  pre-existing  trust, 
or  where  it  purports  to  have  been  executed  in  pursuance 
of  an  agreement  which  it  recites. 

sist  not  only  of  the  original  parties,  but  also  of  all  those  claiming  under 
them  in  privity,  as  heirs,  legatees,  devisees,  assignees,  voluntary  grantees, 
judgment  creditors,  and  purchasers  with  notice  of  the  facts:  Simmons  v. 
North,  3  S.  &  M.  67 ;  Whitehead  v.  Brown,  18  Ala.  682 ;  Stone  t'.  Hale,  17 
Id.  557 ;  Davis  ».  Rogers,  33  Maine  222  ;  Wall  f.  Arrington,  13  Geo.  88  ; 
Godwin  V.  Yonge,  22  Ala.  553  ;  Adams  v.  Stevens,  49  Maine  365  ;  Cady  v. 
Potter,  55  Barb.  (N.  Y.)  463 ;  though  see  Dennis  v.  Dennis,  4  Rich.  Eq. 
307  ;  see  Quirk  v.  Thomas,  6  Mich.  76.  But'  between  creditors  who  have 
equal  equities,  there  can  be  no  relief  for  a  mistake :  Knight  v.  Bunn,  7 
Ired.  Eq.  77  ;  Smith  v.  Turrentine,  2  Jones  Eq.  253.  Equity  will  correct 
as  against  sureties  as  well  as  others  :  Butler  v.  Durham,  3  Ired.  Ch.  589, 

As  to  cases  within  the  Statute  of  Frauds,  however,  the  authorities  in 
the  United  States  are  somewhat  conflicting  where  such  parol  evidence  is 
resorted  to,  not  for  the  purpose  of  rescinding  or  resisting  execution  of  a 
contract,  but  in  order  to  compel  a  specific  performance  with  a  variation, 
though  the  prevailing  opinion  appears  to  be  that  it  is  admissible.  See 
ante,  note  to  page  85,  and  the  American  note  to  AVollam  v.  Hearn,  ut  sup. ; 
also  Thompsonville  v.  Osgood,  26  Conn.  16  ;  Ring  v.  Ashworth,  3  Clarke 
(la,)  458;  White  v.  Port  Huron,  &c.,  R,  R,  Co,,  13  Mich,  356;  Glass  v. 
Hiilbert,  102  Mass,  24,  In  the  absence  of  mistake  or  fraud,  a  provision 
or  stipulation  omitted  from  a  contract  by  the  express  agreement  of  the 
parties,  cannot  be  made,  in  general,  the  ground  of  a  reformation  upon 
parol  evidence.  See  cases  cited  in  American  note  to  Woollam  v.  Ilearn, 
ut  sup,  ;  Ligon's  Admr,  v.  Rogers,  12  Geo,  281 ;  Chamness  v.  Crutchfield, 
2  Ired.  Eq.  148  ;  Whitehead  v.  Brown,  18  Ala.  682 ;  Dwight  v.  Pomeroy, 
17  Mass,  303 :  Andrew  v.  Spurr,  8  Allen  417 ;  Betts  v.  Gunn,  31  Ala,  219, 
But  in  Pennsylvania,  it  has  been  constantly  held,  that  contemporaneous 
verbal  stipulations  or  provisions,  on  the  faith  of  which  a  contract  has  been 
entered  into,  will  control  its  operation :  Christ  v.  Diffenbach,  1  S,  &  R. 
464;  Rearich  v.  Swinehart,  11  Penn.  St,  238;  Chalfant  f,  Williams,  35 
Id,  212,  * 

In  general,  a  Court  of  equity  will  not  relieve  for  ignorance  or  mistake 
of  law :  Hunt  v.  Rousmaniere,  1  Pet,  S,  C,  1 ;  Shotwell  v.  Murray,  1  John, 
Ch,  512  ;  Lyon  v.  Richmond,  2  Id,  60  ;  Brown  v.  Armistead,  6  Rand,  594; 
Farley  v.  Bryant,  32  Maine  474 ;  Freeman  v.  Curtis,  51  Id,  140 ;  Peters  v. 
Florence,  38  Penn,  St,  194 ;  Wintermute  v.  Snyder,  2  Green  Ch,  498  ;  Hall 
V.  Reed,  2  Barb,  Ch,  503 ;  Lyon  v.  Sanders,  23  Miss,  533 ;  Shafer  v.  Davis, 
13  111.  395  ;  Mellish  v.  Robertson,  25  Verm,  603 ;  Smith  v.  McDougal,  2 
Cal,  586  ;  Bently  v.  Whittemore,  3  Green  (N,  J.)  366.     It  has  been  said, 


OF    CORRECTION.  351 

In  the  former  case  the  parties  bound  by  the  trust  have 
no  authority  to  vary  it,  or  to  execute  any  instrument 
inconsistent  with  its  terms  ;  and  if  they  do  so,  whether 
intentionally  or  not,  there  is  a  manifest  equity  to  correct 
their  error.  For  example,  if  a  conveyance  is  improperly 
made  in  supposed  pursuance  of  an  executory  trust  by 
following  its  precise  language,  instead  of  working  out  by 
a  set  of  formal  limitations  what  it  was  intended  to  effect, 
the  error  will  be  rectified  by  decree.  (/)^ 

{/)  Sapra,  Executory  Trusts. 

that  whatever  exceptions  there  may  bo  to  this  rule,  they  will  be  found  to 
be  few  in  number,  and  to  have  something  peculiar  in  their  character,  and 
to  involve  other  elements  of  decision :  Hunt  v.  Rousmaniere,  ut  sup. ; 
Bank  U.  S.  v.  Daniel,  12  Pet.  32.  See  Moreland  v.  Atchison,  19  Tex.  303. 
A  distinction  has  sometimes  been  drawn  between  ignorance  and  mistake 
of  law,  and  the  latter,  when  distinctly  proved,  has  been  held  ground  for 
interference :  Hopkins  v.  Mazyck,  1  Hill  Eq.  242 ;  State  v.  Paup,  8  Eng. 
(Ark.)  135 ;  Lawrence  f.  Beaubin,  2  Bailey  o23 ;  but  see  Champlin  v.  Laytin, 
18  Wend.  407  ;  Jacobs  r.  Morange,  47  N.  Y.  57.  Mistake  as  to  the  legal 
effect  of  a  conveyance,  will  not  be  relieved  against,  where  the  conveyance 
is  such  as  the  parties  intended  at  the  time :  Hunt  t".  Rousmaniere,  ut  sup. ; 
Gilbert  r.  Gilbert,  9  Barb.  S.  C.  532;  Arthur  v.  Arthur,  10  Id.  9;  Mellish 
r.  Robertson,  25  Verm.  608  ;  Farley  r.  Bryant,  32  Maine  474  ;  Larkins  v. 
Biddle,  21  Ala.  252  ;  Hawralty  v.  Warren,  3  Green  (N.  J.)  124;  Burt  v. 
Wilson,  28  Cal.  632;  Hoover  c.  Reilly,  2  Abb.  U.  S.  471.  Though  see 
Clayton  c.  Freet,  10  Ohio  (N.  S.)  544;  Kennard  v.  George,  44  N.  H.  440; 
also  Green  v.  The  Morris  and  Essex  R.  R.  Co.,  1  Beas.  165  ;  Canedy  v. 
Marcy,  13  Gray  373  ;  King  v.  Doolittle,  1  Head  77  ;  Gross  v.  Leber,  47 
Penn.  St.  520;  Clayton  v.  Bussey,  30  Ga.  946  ;  Lister  v.  Hodgson,  L.  R. 
4  Eq.  30.  Where,  however,  one  of  the  parties  to  a  contract  knows  that 
the  other  is  ignorant  of  some  matter  of  law  involved  in  it,  and  takes  ad- 
vantage of  that  ignorance,  relief  will  be  granted  on  the  ground  of  fraud : 
Cooke  V.  Xathan,  16  Barb.  342 ;  Dill  c.  Shahan,  25  Ala.  694.  This  subject 
has  been  much  discussed  in  the  United  States,  and  there  is  no  little  diver- 
sity of  opinion  upon  it.  See  Story  on  Equity,  g  136,  &c.,  where  it  is 
treated  of  at  large. 

See  upon  this  subject  generally  the  note  to  Wollam  p.  Hearne,  2  Lead. 
Cas.  Eq.  supra. 

^  Equity  will  not  reform  a  voluntary  deed  as  against  the  grantor:  Broun 


352  ADAMS's    DOCTRINE    OF    EQUITY. 

In  the  second  case  where  the  instrument  purports  to 
carry  into  execution  an  agreement  which  it  recites,  and 
exceeds  or  falls  short  of  that  agreement,  there  is  no  diffi- 
culty in  rectifying  the  mistake ;  for  then  there  is  clear 
evidence  in  the  instrument  itself  that  it  operates  beyond 
its  real  intent/  If,  however,  there  is  no  recital  of  any 
agreement,  but  a  mistake  is  alleged,  and  extrinsic  evi- 
dence tendered  in  proof  that  it  was  made,  the  limits  of 
the  equity  for  correction  are  more  difficult  to  define. 
The  frimd  facie  presumption  of  law  is,  that  the  written 
contract  shows  the  ultimate  intention,  and  that  all  pre- 
vious proposals  and  arrangements,  so  far  as  they  may  be 
consistent  with  that  contract,  have  been  deliberately 
abandoned.  It  seems,  however,  that  the  instrument  may 
be  corrected,  if  it  is  admitted  or  proved  to  have  been 
made  in  pursuance  of  a  prior  agreement,  by  the  terms  of 
which  both  parties  meant  to  abide,  but  with  which  it  is  in 
fact  inconsistent  j  or  if  it  is  admitted  or  proved  that  an 
instrument  intended  by  both  parties  to  be  prepared  in  one 
form,  has,  by  reason  of  some  undersigned  insertion  or 
omission,  been  prepared  and  executed  in  another.  If,  for 
r*1 701  i'^st^^^^j  ^  contract  were' made  *for  the  purchase 
of  certain  hereditaments,  and  the  conveyance  were 
to  omit  a  portion,  or  were  to  pass  more  than  was  intended, 
there  would  be  an  equity  to  correct  the  deficiency  or  ex- 
cess. So  again,  where  a  solicitor,  being  instructed  to 
prepare  a  settlement  of  a  particular  sum,  inserted  by  mis- 
take double  the  amount,  and  the  settlement  was  executed 

V.  Kennedy,  33  Beavan  147  ;  Phillipson  v.  Kerry,  32  Id.  637  ;  Henderson 
V.  Dickey,  35  Mo.  126.  But  see  Thompson  v.  Whitmore,  1  Johns.  &  II. 
268  ;  Mitchell  v.  Mitchell,  40  Ga.  II. 

^  Where  there  is  an  express  ageeement  for  a  policy  of  insurance  in  a 
particular  form,  and  the  policy  is  drawn  in  a  different  form  by  the  insurer, 
equity  will  reform,  on  the  face  of  the  instruments:  Collett  v.  Morrison,  9 
Hare  162;  Powell  v.  Fireman's  Ins.  Co.,  13  B  Monr.  311. 


OF    CORRECTION.  353 

without  discovery  of  the  mistake,  a  bill  was  sustained  to 
rectify  it ;  and  the  same  course  was  pursued  where  the 
solicitor,  being  directed  to  strike  out  a  particular  clause, 
had  by  mistake  extended  his  erasure  to  the  one  which 
followed  it.(^)  But  it  is  not  sufficient  that  there  is  a 
mistake  as  to  the  legal  consequences  of  the  instrument ; 
for  to  admil  correction  on  this  ground  would  be  indirectly 
to  construe  by  extrinsic  evidence,  and  the  proper  ques- 
tion is  not  what  the  document  was  intended  to  mean,  of 
how  it  was  intended  to  operate,  but  what  it  was  intended 
to  be,^  For  example,  where  an  annuity  had  been  sold  by 
the  plaintiff,  and  was  intended  to  be  redeemable,  but  it 
was  agreed  that  a  clause  of  redemption  should  not  be  in- 
serted in  the  grant,  because  both  parties  erroneously  sup- 
posed that  its  insertion  would  make  the  transaction  usuri- 
ous, it  was  held  that  the  omission  could  not  be  supplied 
in  equity ;  for  the  Court  was  not  asked  to  make  the  deed 
what  the  parties  intended,  but  to  make  it  that  which  they 
did  not  intend,  but  which  they  would  have  intended  if 
they  had  been  better  informed.  So  also  it  has  been  de- 
cided, that  where  a  party  making  a  voluntary  deed  sup- 
poses that  he  will  have  a  power  of  subsequent  revocation, 
though  no  such  power  is  reserved,  the  deed  cannot  after- 
wards be  altered  to  give  him  the  power,  for  the  evidence 
is  not  that  its  insertion  was  prevented  by  mistake,  but 
that  it  was  never  intended  to  be  made.(/i)^ 

{g)  Beaumont  r.  Brainley,  T,  &  R.  41  ;  Breadalbane  v.  Chandos,  2  M.  & 
C.  711  ;  Young  v.  Young,  J  Dick.  295  ;  Rogers  v.  Earl,  Id.  294;  Wilson 
V.  Wilson,  14  Sim.  405 ;  1  Sug.  V.  &  P.  c.  iii.,  s.  11  ;  Okill  v.  Whittaker,  2 
Ph.  338. 

[h]  Irnham  v.  Child,  1  B.  C.  C.  92;  Townshend  v.  Stangroom,  6  Ves. 
328,  332 ;  Worall  v.  Jacob,  3  Meriv.  267,  271. 

^  See  note,  ante,  168. 

^  See  as  to  rectification  of  a  settlement  where  the  solicitor  preparing  has 
exceeded  hia  instructions  :  Walker  r.  Armstrong,  25  L.  J.  Ch.  638. 
23 


354  ADAMS's     DOCTRINE    OF    EQUITY. 

r*1 711  *^^  order  to  sustain  a  bill  for  relief  under  this 
equity,  it  is  essential  that  the  error  be  on  both 
sides,  and  that  it  be  admitted  by  the  defendant  or  dis- 
tinctly proved.^  It  must  be  a  mistake  on  both  sides,  for  if 
it  be  by  one  party  only,  the  altered  instrument  is  still  not 
the  real  agreement  of  both.^  A  mistake  on  one  side  may 
be  a  ground  for  rescinding  a  contract,  or  for  refusing  to  en- 
force its  specific  performance  ;  but  it  cannot  be  a  ground 
for  altering  its  terms.  And  the  mistake  must  be  admitted 
or  distinctly  proved.  In  determining  whether  such  proof 
has  been  given,  great  weight  will  be  allowed  to  what  is 
reasonably  and  properly  sworn  by  the  defendant ;  but  his 
oath  is  not  conclusive,  and  may  be  counterbalanced  by 
evidence.  It  has  been  suggested  that  in  all  cases  where 
the  Court  has  reformed  a  settlement,  there  has  been 
something  beyond  mere  parol  evidence ;  such,  for  instance, 
as  the  instructions  for  preparing  the  conveyance,  or  a 
note  by  the  attornej^,  and  the  mistake  properly  accounted 
for.  But  it  does  not  seem  that  evidence  would  be  abso- 
lutely inadmissible  even  though  there  were  nothing  in 
writing  to  which  it  might  attach.  It  would,  however,  be 
difficult  to  support  the  allegation  of  mistake,  if  the  de- 
fendant positively  denied  it,  and  there  were  nothing  to 
depend  on  but  the  recollection  of  witnesses.  (^) 

(i)  Townshend  v.  Stangroom,  6  Ves.  328  ;  Beaumont  v.  Bramley,  T.  & 
R.  41  ;  Alexander  v.  Crosbie,  L.  &  G.  145 ;  Mortimer  v.  Shortall,  1  Conn. 
&  L.  417. 

1  Lanier  v.  Wyman,  5  Rob.  (N.  Y.)  147 ;  Mills  v.  Lewis,  55  Barb.  (N. 
Y.)  179;  Nevius  v.  Dunlap,  33  N.  Y.  676. 

*  Thus  a  policy  of  insurance  will  not  be  reformed  in  consequence  of  a 
mistake  of  the  assured  alone :  Cooper  v.  The  Farmers'  Ins.  Co.,  50  Penn.  St. 
299.  And  see  Bentley  v.  Mackay,  31  Beav.  151 ;  Sawyer  v.  Hovey,  3 
Allen  331  ;  Woodbury  Savings  Bank  v.  Insurance  Company,  31  Conn. 
517  ;  Diman  v.  Providence  R.  R.  Co.,  5  Rhode  Island  130.  But  mistake 
on  the  one  side  and  fraud  on  the  other  will  authorize  a  reformation :  Wells 
V.  Yates,  44  N.  Y.  525. 


OF    CORRECTION.  355 

Where  land  is  the  subject  of  the  erroneous  instrument, 
the  reformation  of  an  executed  conveyance  on  parol  evi- 
dence is  not  precluded  by  the  Statute  of  Frauds,  for 
otherwise  it  would  be  impossible  to  give  relief.  And 
where  a  mistake  in  an  executory  agreement  relating  to 
land  is  alleged,  parol  evidence  may  be  admitted  in  oppo- 
sition to  the  equity  for  specific  performance.  But  it  does 
not  appear,  that  where  the  defendant  has  insisted  on 
the  benefit  of  the  statute,  the  Court  has  ever  reformed 
such  an  executory  agreement  on  parol  evidence,  and 
specifically  enforced  *it  with  the  variation.  (^)^  P1721 
A  will  cannot  be  corrected  by  evidence  of  mis- 
take, so  as  to  supply  a  clause  or  word  inadvertently 
omitted  by  the  drawer  or  copier;  for  there  can  be  no  will 
without  the  statutory  forms,  and  the  disappointed  inten- 
tion has  not  those  forms.^  But  it  seems  that  if  a  clause 
be  inadvertently  introduced,  there  may  be  an  issue  to  try 
whether  it  is  part  of  the  testator's  will,  (l) 

In  addition  to  the  cases  of  correction  on  direct  evidence 
of  mistake,  there  are  others  where  it  has  been  decreed  on 
a  presumption  of  equity ;  as,  for  example,  where  bonds 
given  for  payment  of  a  joint  and  several  debt,  but  drawn 
up  as  merely  joint,  have  been  reformed  in  equity  and 
made  joint  and  several,  so  as  to  charge  the  estate  of  a  de- 
ceased obligor.^     The  principle  on  which  this  presumption 

(^•)  Attorney-General  v.  Sitwell,  1  Y.  &  C.  559 ;  Townshend  v.  Stan- 
groom,  6  Ves.  328  ;  Higginson  v.  Clowes,  15  Ves.  516 ;  1  V.  &  B.  524 ;  Okill 
V.  Whittaker,  2  Ph.  338. 

(1)  8  Yin.  Abr.  188,  G.  a,  pi.  1 ;  Newburgh  r.  Newburgh,  5  Madd.  364 ; 
1  Jarm.  on  Wills  353  ;  Wigram  on  Wills  s.  121. 

*  See  Osborn  v.  Phelps,  19  Conn.  63  ;  but  see  note,  ante,  p.  85  and  168  ; 
notes  to  WooUam  v.  Hearne,  2  Lead.  Cas.  Eq.  670. 

^  See  Jackson  r.  Payne,  2  Metcalfe  (Ky.)  567  ;  Hunt  v.  White,  24  Texas 
643. 

'  Story's  Eq.  s.  162 ;  AVeaver  v.  Shryock,  6  S.  &  R.  262  ;  Stiles  v.  Brock, 
1  Penn.  St.  215. 


356  ADAMS's    DOCTRINE    OF    EQUITY. 

depends  is,  that  if  the  debt  itself  were  joint  and  several, 
and  a  bond  were  given  to  secure  that  debt,  it  must  be 
supposed  that  the  liability  on  the  bond  was  to  be  coex- 
tensive with  the  liability  for  the  debt.  On  the  same 
principle  it  is  held  that  where  a  loan  has  been  made  to 
several  persons  jointly,  it  must  be  presumed  that  every 
debtor  was  to  be  permanently  liable,  until  the  money 
should  be  paid ;  and  that  therefore  a  debt  so  arising, 
though  at  law  it  is  the  joint  debt  of  all  the  co-debtors, 
shall  be  treated  in  equity  as  the  several  debt  of  each.(w)^ 
If,  however,  there  be  no  independent  liability,  as  for  ex- 
ample, if  the  bond  be  of  indemnity  or  of  suretyship,  there 
is  no  presumption  that  the  instrument  is  erroneous,  and 
no  jurisdiction  to  vary  its  effect.  If  therefore,  it  be  a 
joint  obligation  in  form,  it  can  have  only  the  effect  of  a 
joint  obligation.  For  its  construction  is  the  same  in  equity 
and  at  law;  and  unless  there  be  evidence,  direct  or 
r*l  7^1  ^presumptive,  that  its  ^orm  is  contrary,  to  what 
was  meant,  it  cannot  be  altered  on  mere  con- 
jecture, (w)^ 

An  important  instance  of  the  equity  in  respect  to  co- 

[m)  Simpson  v.  Vaughn,  2  Atk.  31 ;  Bishop  v.  Church,  2  Yes.  100 ; 
Thorpe  v.  Jackson,  2  Y.  &  C.  553  ;  ,CIarke  i'.  Bickers,  14  Sim.  639. 

(»)  Sumner  v.  Powell,  2  Meriv.  30  ;  Underhill  v.  Horwood,  10  Ves.  209, 
227  ;  Rawstone  v.  Parr,  3  Russ.  539. 

^  This  proposition,  that  a  joint  loan  creates  a  joint  and  several  debt  in 
equity,  for  which  Thorpe  v.  Jackson,  is  cited,  was  doubted  in  Jones  v. 
Beach,  2  De  G.,  M.  &  G.  886,  by  L.  J.  Knight  Bruce. 

»  Jones  V.  Beach,  2  De  G.,  M.  &  G.  886 ;  U.  S.  v.  Price,  9  How.  U.  S. 
83  ;  Moser  v.  Libenguth,  2  Rawle  428.  Such  evidence  must  be  of  mistake 
of  fact,  as  by  the  draftsman  of  his  instructions,  but  not  of  law,  as  of  the 
legal  effect  of  the  words  used  :  Moser  v.  Libenguth,  ut  sup.  The  rule  has 
been  also  applied  to  the  case  of  a  joint  judgment,  entered  on  a  joint  and 
several  bond,  and  the  estate  of  the  surety  held  discharged  by  his  death 
after  the  rendering  of  the  judgment:  U,  S.  v.  Price,  ut  supr. 


OF    CORRECTION.  357 

debtors  occurs  in  the  case  of  debts  owing  by  a  partner- 
ship. On  the  death  of  a  partner,  the  liability  survives  at 
law,  and  the  debt  is  chargeable  on  the  surviving  partners 
alone.  But  the  deceased  partner's  assets  remain  liable  in 
equity;  and  the  liabilities  may  be  enforced  either  by  the 
creditor  or  by  the  surviving  partners.  The  duration  of 
the  liability  is  sometimes  doubtful;  and  so  also  is  the  du- 
ration of  a  partner's  liability  who  has  retired  from  the 
firm,  and  is  afterwards  sued  by  an  anterior  creditor.  The 
doubt,  however,  i§  not  of  law,  but  of  fact.  •  The  principle 
of  decision  is  clear;  viz.,  that  the  deceased  or  retiring 
partner's  estate  must  remain  liable  until  the  debts  which 
affected  him  are  discharged.  But  the  discharge  may  take 
place  in  various  ways;  e.  g.,  by  actual  payment  on  ac- 
count of  such  debts;  by  the  regular  application  of  unapro- 
priated  payments  to  their  reduction,  as  the  earliest 
items  on  the  account;  by  the  express  or  implied  agree- 
ment of  the  creditor  to  substitute  the  continuing  partners 
as  his  debtors ;  or  by  the  effect  of  the  Statute  of  Limita- 
tions in  barring  the  claim ;  and  the  question  iu'  each  case 
is,  whether,  as  against  the  particular  partner,  the  debt 
has  been  in  fact  discharged,  (o) 

The  equity  for  correction  on  presumptive  evidence  is 
applied  also  to  mortgages  by  husband  and  wife,  of  the 
wife's  estate,  which  have  limited  the  equity  of  redemption 
to  the  husband.  If  the  instrument  does  not  recite  an  in- 
tention^ to  do  more  than  make  a  mortgage,  the  presump- 

(o)  Wilkinson  v.  Henderson,  1  M.  &  K.  582 ;  Winter  v.  Innes,  4  M,  & 
C.  101  ;  Brown  v.  Weatherby,  12  Sim.  C  ;  Tatam  v.  Williams,  3  Hare  347  ; 
Way  V.  Bassett,  5  Id,  55 ;  Thompson  v.  Percival,  5  B.  &  Ad.  925  ;  Hart 
V.  Alexander,  2M.  &  W.  484  ;  Blair  r.  Bromley,  5  Hare  542,  555  ;  Smith's 
Merc.  Law  55. 

'  It  is  not  necessary,  however,  as  was  decided  in  Innes  v.  Jackson,  cited 
below,  that  such  intention  should  appear  in  the  recitals  in  the  deed;  it  is 


358  ADAMS's    DOCTRINE    OF    EQUITY. 

tion  is  that  nothing  more  was  intended ;  and  the  instru- 
r-.^-.  (J . -|  ment  will  be  *reformed  by  restoring  the  equity 
of  redemption  to  the  wife.^  And  in  like  manner 
it  is  held,  that  if  a  lease  be  made  by  tenant  for  life,  under 
a  power  created  by  a  settlement,  and  a  rent  reserved  to 
the  lessor  and  his  heirs,  these  words  shall  be  interpreted 
by  the  prior  title,  and  applied  to  the  remainderman  under 
the  settlement,  and  not  to  the  heir  of  the  lessor.  (0) 

The  jurisdiction  for  Rescission  and  Cancellation  arises 
where  a  transaction  is  vitiated  by  illegality  or  fraud,  or 
by  reason  of  its  having  been  carried  on  in  ignorance,  or 
mistake  of  facts  material  to  its   operation.^     And  it  is 

(2)  Innes  v.  Jackson,  1  Bl.  0.  S.  104,  114 ;  Clark  v.  Burgh,  2  Coll.  221 ; 
[see  also,  Plowden  v.  Hyde,  2  De  G.,  M.  &  G.  684.] 


sufficient  if  it  appear  from  the  whole  transaction  ;  and  see  Demarest  v. 
Wynkoop,  3  John.  Ch.  129  In  the  recent  case  of  Whitbread  v.  Smith,  3 
De  G.,  M.  &  G.  737,  it  was  held  that  the  Court  would  not  on  slight  ex- 
pressions in  the  proviso  for  redemption,  infer  an  intention  to  exclude  the 
wife.  Where  there  has  been  a  different  construction,  it  was  said,  there 
were  special  circumstances  independently  of  the  limitations  of  the  equity 
of  redemption.  See  also,  Plowden  v.  Hyde,  2  De  G.,  M.  &  G.  684. 
Where  a  wife  mortgages  her  property  for  a  husband's  debt,  she  stands  in 
the  position  of  surety,  and  is  entitled  to  exoneration  out  of  his  estate : 
Sheidle  v.  Weishlee,  16  Penn.  St.  134 ;  Neimcewicz  v.  Gahn,  3  Paige  614; 
and  if  her  estate  is  joined  with  her  husband's  in  one  mortgage  under  such 
circumstances,  the  latter  must  be  first  sold :  Loomer  v.  Wheelwright,  3 
Sandf.  Ch.  135  ;  Johns  v.  Reardon,  11  Md.  465-,  or  if  her  estate  has  been 
sold,  she  is  entitled  to  subrogation  to  the  mortgage,  as  against  her  hus- 
band :  Sheidle  v.  Weishlee.  On  the  other  hand,  where  the  mortgage  by 
the  husband  and  wife  is  of  the  wife's  separate  estate,  parol  evidence  is  ad- 
missible to  show  that  the  money  was  really  advanced  to  the  wife,  and  the 
husband  the  surety :  Gray  v.  Downman,  27  L.  J.  Ch.  702. 

^  On  the  other  hand,  equity  will  not  relieve  against  a  deed  of  a  married 
woman  which  is  defective  through  non-compliance  with  statutory  regula- 
tions :  Dickinson  r.  Glenney,  27  Conn.  104. 

*  To  justify  the  rescission  of  an  executed  contract,  there  must  be  some 
objection  affecting  the  substance  of  the  contract;  and  a  contract  can  never 


OF    RESCISSION    AND    CANCELLATION.  359 

exercised  for  a  double  purpose ;  first,  for  cancelling  exe- 
cutory contracts,  where  such  contracts  are  invalid,  but 

be  rescinded,  except  in  case  of  fraud  or  palpable  mistake:  Thompson  v. 
Jackson,  3  Rand.  504. 

Inadequacy  of  price  by  itself  is  no  ground  of  rescission,  as  has  been 
held  in  a  great  number  of  cases :  Osgood  v.  Franklin,  2  Johns.  Ch.  1 5  Hill 
on  Trustees  236,  237  (4tn  Am.  ed.),  and  cases  cited :  Potter  v.  Everett,  7 
Ired.  Eq.  152 :  Robinson  v.  Robinson,  4  Md.  Ch.  183  ;  Judge  v.  "Wilkins, 
19  Ala.  765  ;  Erwin  v.  Parhara,  12  How.  U.  S.  197  ;  Harrison  v.  Guest,  8 
H.  L.  Cas.  481.  Yet  it  may,  in  connection  with  suspicious  circumstances, 
be  evidence  of  fraud  :  Wormack  v.  Rogers,  9  Geo.  60  ;  McArtee  v.  Engart, 
13  111.  242  ;  Coffee  v.  Ruffin,  4  Cold.  (Tenn.)  487  ;  particularly  in  view  of 
the  mental  capacity  of  the  seller,  or  the  relations  of  the  parties  ;  see  post 
182  and  notes.  And  it  has  been  often  said,  though  not  often  acted  on, 
that  where  the  inadequacy  is  very  gross  indeed,  so  as  to  shock  the  con- 
science and  understanding  of  any  man,  the  Court  from  that  alone  would 
infer  fraud  or  imposture  :  Wright  v.  Wilson,  2  Yerg.  294  ;  Butler  v.  Has- 
kell, 4  Dessaus.  652;  Gist  v.  Frazier,  2  Litt.  118  ;  Barnett  v.  Spratt,  4  Ired. 
Eq.  171 ;  Deaderrick  ».  Watkins,  8  Humph.  520  ;  Juzan  v.  Toulmin,  9  Ala. 
662 ;  Eye  v.  Potter,  15  How.  U.  S.  60  ;  Gifford  v.  Thorn,  1  Stockt.  702 ; 
Surget  V.  Byers,  1  Hempst.  C.  C.  715  ;  Marlatt  v.  "Warwick,  3  Green  (N. 
J.)  108 ;  but  see  Erwin  v.  Parham,  12  How.  197. 

On  the  other  hand,  a  pui^chase  of  land  at  an  exorbitant  price,  made  on 
condition  of  a  loan  of  money,  by  a  party  whose  necessities  compel  him  to 
borrow,  will  be  set  aside :  Cockell  v.  Taylor,  15  Beav.  147. 

The  cancellation  of  an  instrument  may  be  decreed,  though  it  has  become 
a  nullity,  on  the  ground  of  its  creating  a  cloud  in  the  title,  or  because  it 
may  subject  the  party  to  litigation  when  the  facts  are  forgotten  :  Cook  ». 
Cole,  2  Halst.  Ch.  522,  627;  but  see,  De  Hoghton  v.  Money,  L.  R.  1  Eq. 
154,  where  it  was  held  that  a  purchaser  for  value  could  not  require  a 
voluntary  agreement  affecting  the  land  to  be  delivered  up. 

A  Court  of  Chancery  may  refuse  to  rescind  a  contract,  where  it  would 
refuse  to  enforce  a  specific  performance  of  it,  at  the  suit  of  the  other  party : 
Beck  V.  Simmons,  7  Ala.  71 ;  "Watkins  v.  Collins,  11  Ohio  31  ;  Kirby  v. 
Harrison,  2  Ohio  N.  S.  326. 

Application  for  a  rescission  must  usually  be  made  as  soon  as  the  cause 
for  rescission  is  discovered  :  Ayres  v.  Mitchell,  3  S.  &  M.  683 ;  and  the 
Court  will  not  rescind  a  contract,  unless  it  can  put  the  parties  in  statu  quo. 
Pintard  v.  Martin,  1  S.  &  M.  Ch.  126  ;  Garland  v.  Bowling,  1  Hemp.  C.  C. 
170;  Coppedge  v.  Threadgill,  3  Sneed  377.  See  also.  Skinner  v.  "White, 
17  John.  357 ;  Clay  v.  Turner,  3  Bibb  52 ;  Lane  r.  Latimer,  41  Ga.  171. 
The  court  will  refuse  to  rescind  where  the  plaintiff  has  acted  in  a  manner 


360  ADAMS's    DOCTRINE    OF    EQUITY. 

their  invalidity  is  not  apparent  on  the  instrument  itself, 
so  that  the  defence  may  be  nullified  by  delaying  to  sue 
until  the  evidence  is  lost ;  {a)  and  secondly,  for  setting 
aside  executed  conveyances  or  other  impeachable  trans- 
actions, where  it  is  necessary  to  replace  the  parties  in 
statu  quo.  And  in  such  cases,  though  pecuniary  damages 
might  be  in  some  sense  a  remedy,  yet,  if  fraud  be  com- 
plained of,  there  is  jurisdiction  in  the  Court  of  Chan- 
cery. (^)  The  mode  of  relief  under  this  equity,  may  be 
by  cancellation  of  the  instrument,  or  reconveyance  of  the 
property  which  has  been  unduly  obtained,  or  by  an  injunc- 
tion against  suing  at  law  on  a  vitiated  contract,  or  against 
taking  other  steps  to  complete  an  incipient  wrong,  (c) 

We  will  first  consider  the  case  of  Rescission  and  Can- 
cellation for  illegality. 

It  is  a  maxim  of  law,  that  "  ex  turpi  causd  non  oritur 
actio;'  and,  therefore,  if  a  contract  of  such  a  character 
be  made,  its  invalidity  will  be  a  defence  at  law,  whilst  it 
r*17^1  *^^^^i^s  unexecuted;  and  pari  ratione,  if  its 
illegal  character  be  not  apparent  on  the  face  of  it, 
will  be  a  ground  for  cancellation  in  equity.^  Such,  for 
instance,  are  contracts  entered  into  for  the  purposes  of 
gaming^  or  smuggling,  for  inducing  or  aiding  prostitution,^ 

(a)  Peake  v.  Highfield,  1  Russ.  559;  Jones  v.  Lane,  3  Y.  &  C.  281,  294; 
Simpson  v.  Lord  Howden,  3  M.  &  C.  97. 
(6)  Evans  v.  Bicknell,  6  Ves.  174 ;  Blair  v.  Bromley,  2  Ph.  354. 
(c)  Infra,  Injunction. 

inconsistent  with  the  repudiation  of  the  contract:  Ex  parte  Briggs,  L.  R. 
1  Eq.  483.  Equity  -will  also,  upon  a  proper  case  being  made,  rescind  con- 
tracts in  relation  to  'personal  as  well  as  real  estate :  Bradberry  v.  Keas,  5 
J,  J.  Marsh.  446. 

1  W V.  B ,  32  Beav.  574. 

2  Rucker  v.  Wynne,  2  Head  617. 

»  Walker  v.  Gregory,  36  Ala.  180. 


OF    RESCISSION    AND    CANCELLATION.  361 

for  compromising  a  criminal  prosecution,  for  giving  usuri- 
ous interest  on  a  loan ;  or  even  for  purposes  which,  though 
not  strictly  illegal,  are  against  the  policy  of  the  law,^  e.  g., 
for  an  unreasonable  restraint  of  trade. 

If  the  contract  be  already  executed,  it  cannot  be  set 
aside  as  illegal  or  immoral ;  for  it  is  a  maxim  that  "  in  pari 
delicto  melior  est  conditio  defendentisT^  But  it  is  otherwise 
where  a  law  is  made  to  prevent  oppression,  and  the  op- 
pressed party  is  asking  relief,  e.  g.,  on  a  breach  of  the 
statutes  against  usury ;  for  in  such  a  case,  although  the 
complainant  has  joined  in  violating  the  law,  he  is  not  con- 
sidered in  pari  delicto,  but  may  defeat  the  contract  after 
completion.^ 

So  long  as  the  contract  continues  executory,  the  maxim 
oi''^  in  pari  delicto^  does  not  apply;  for  the  nature  of  the 


'  See  Brown  v.  Speyers,  20  Gratt.  296. 

'  See  Blystone  v.  Blystone,  51  Penn.  St.  373. 

'  Courts  of  equity  will  not  set  aside  an  executed  conveyance  to  com- 
pound a  felony :  Swartzer  v.  Gillett,  1  Chand.  (Wis.)  207 ;  nor  a  conveyance 
of  a  slave,  upon  a  secret  trust  for  his  emancipation,  when  it  is  against  law: 
Grimes  v.  Hoyt,  2  Jones  Eq.  271. 

A  debtor,  however,  may  always  obtain  relief  in  equity  against  a  usurious 
contract ;  but  he  is  obliged  to  tender  by  his  bill  the  principal  of  the  debt 
and  legal  interest,  except  in  New  York,  where  this  is  dispensed  with  by 
statute :  Story  Eq.,  \  301 ;  see  Vilas  r.  Jones,  1  Comst.  274 ;  Rexford  v. 
Widger,  2  Id.  131 ;  West  v.  Beanes,  3  Harr.  &  John.  568;  Anon.,  2  Des- 
saus.  333. 

So,  where  the  parties  to  a  contract  contrary  to  public  policy,  or  illegal, 
are  not  in  pari  delicto,  and  where  public  policy  is  considered  as  advanced 
in  allowing  either,  or  at  least  the  more  excusable  of  the  two,  to  sue  for 
relief,  as  in  the  case  of  bargains  "savoring  of  champerty,"  equity  will 
relieve,  though  against  an  executed  conveyance :  Reynell  v.  Sprye,  1 
De  G.,  M.  &  G.  660 ;  21  L.  J.  Ch.  633  ;  affirming  s.  c.  Hare  222.  Where  a 
party  is  injured  by  an  act  which  is  a  felony  at  common  law,  or  by  statute, 
there  is  no  remedy  at  law  or  in  equity  till  after  a  conviction  or  acquittal 
on  the  criminal  charge  ;  but  this  does  not  apply  where  the  injury  is  not 
discovered  till  after  the  criminal's  death :  Wickham  v.  Gattrell,  18  Jur.  768. 


362  ADAMS's    DOCTRINE    OF    EQUITY. 

contract  would  be  a  defence  at  law,  and  the  decree  of  can- 
cellation is  only  an  equitable  mode  of  rendering  that  de- 
fence effectual.  The  prayer,  however,  must  be  confined 
to  cancellation  of  the  contract,  and  must  not  couple  relief 
in  affirmance  of  it,  such  as  specific  performance  or  reform- 
ation of  error.  (6?) 

Next,  of  Rescission  and  Cancellation  by  reason  of  fraud.^ 
The  avoidance  of  transactions  on  the  ground  of  fraud 
is  a  copious  source  of  jurisdiction  in  equity.  With  re- 
spect to  fraud  used  in  obtaining  a  will,  this  jurisdiction 
does  not  exist.  If  the  will  be  of  real  estate,  it  is  exclu- 
sively cognisable  at  law;  if  of  personal  estate,  in  the 
Ecclesiastical  Court,  (e)  In  other  cases  of  fraud,  the 
Court  of  Chancery  has  concurrent  jurisdiction  with  the 

r*l 7fi1  ^^^^^^  ^^ ^^^  'y"  ^^^  *this  jurisdiction  will  be  ex- 
ercised against  any  one  who  has  abetted  or  pro- 
fited by  the  fraud,  and  after  any  length  of  time.  The 
infancy  of  the  defrauding  party  will  not  exonerate  him, 
for  though  the  law  protects  him  from  binding  himself  by 
contract,  it  gives  him  no  authority  to  cheat  others. (/)^ 

(d)  Batty  V.  Chester,  5  Beav.  103. 

(e)  Infra  248,  Establishment  of  Wills.    [But  see  note,  Ibid.] 

(y)  Overton  v.  Banister,  3  Hare  503;  Stikeman  v.  Dawson,  1  De  G.  & 
Sm.  90;  [Wright  u.  Snowe,  2  Id.  321 ;  Stoolfoos  v.  Jenkins,  12  S.  &  R. 
399.] 

*  In  equity  nothing  can  be  called  fraud,  or  treated  as  fraud,  except  an 
act  which  involves  grave  moral  guilt:  Smallcomb's  Case,  L.  R.  3  Eq.  769. 

»  See  Relf  v.  Eberly,  23  Iowa  467 ;  McHenry  v.  Hazard,  45  N.  Y.  580. 

'  So  of  B,feme  coverte :  Jones  v.  Kearney,  1  Dr.  &  Warr.  134  ;  see  Davis 
V.  Tingle,  8  B  Monr.  539  ;  Hobday  v.  Peters,  28  Beav.  603.  In  the  recent 
case  of  Vaughan  v.  Vanderstegan,  2  Drewry  363,  it  was  held  that  a  married 
woman,  fraudulently  representing  herself  as  sole,  made  her  separate  estate 
liable  for  debts  so  contracted,  and  that  where  she  had  a  general  power  of 
appointment  and  exercised  it,  equity  would  treat  the  property  as  assets  on 
her  death.  See  Hobday  v.  Peters,  28  Beav.  603 ;  Hill  on  Trustees  663, 
4th  Am.  ed. 


OF    RESCISSION    AND    CANCELLATION.  363 

The  absence  of  personal  benefit  is  no  excuse;  for  if  a 
man  has  aided  or  abetted  a  fraud  he  may  be  justly  made 
responsible  for  its  result,  and  even  if  no  other  relief  be 
asked  against  him,  may  be  compelled  to  pay  the  costs 
of  suit.  (^)  The  lapse  of  time  is  no  bar  to  relief,  for  so 
long  as  the  fraud  remains  unknown,  it  is  a  daily  aggra- 
vation of  the  original  wrong ;  (h)  and  even  the  innocence 
of  a  party  who  has  profited  by  the  fraud,  will  not  entitle 
him  to  retain  the  fruit  of  another  man's  misconduct,  or 
exempt  him  from  the  duty  of  restitution,  (z)  On  the 
other  hand,  all  unfounded  allegations  of  fraud  are  dis- 
couraged by  the  Court ;  and  if  such  allegations  are  made, 
and  not  established,  the  plaintiff  will  not  in  general  be 
allowed  to  resort  to  any  secondary  ground  of  relief.  (^)* 

With  respect  to  what  will  constitute  fraud,  it  is  impos- 
sible to  lay  down  a  specific  rule ;  but  the  most  ordinary 
instances  of  its  occurrence,  and  those  to  which  oui-  atten- 
tion will  be  now  directed,  are  the  procuring  contracts  to 

(g)  Supra,  Priority  of  Equity  on  the  ground  of  Fraud.  Beadles  v.  Burch, 
10  Sim.  332;  Attwood  v.  Small,  6  C.  &  F.  232. 

(A)  Alden  v.  Gregory,  2  Eden  280 ;  South  Sea  Company  v.  Wymondsell, 
3  P.  Wms.  143 ;  Hovenden  v.  Lord  Annesley  2  Sch.  &  L.  607,  639. 

(i)  Huguenin  v.  Baseley,  14  Ves.  273,  289. 

{k)  Glascott  V.  Lang,  2  Ph.  310. 

*  Price  V.  Berrington,  3  Macn.  &  G.  486  ;  Eyre  v.  Potter,  15  How.  U.  S. 
50  ;  Fisher  v.  Boody,  1  Curtis  211  ;  see  Waters  v.  Mynn,  14  Jur.  341.  It 
is  not  suflBcient  to  allege  fraud,  in  order  to  the  rescission  of  a  transaction, 
it  must  also  be  made  to  appear  that  the  complainant  has  sufiFered  some  in- 
jury thereby  :  Cunningham  v.  Ashley,  7  Eng.  (Ark.)  290 ;  Cook  v.  Cook,  Id. 
381 ;  Jewett  v.  Davis,  10  Allen  (Mass.)  68.  In  general,  an  allegation  of 
fraud  is  necessary :  Gouveneur  v.  Elmendorff,  5  Johns.  Ch.  79 ;  Thompson 
V.  Jackson,  3  Rand.  504  ;  Booth  v.  Booth,  3  Lit.  57  ;  Miller  v.  Cotten,  5  Ga. 
340  ;  Conway  v.  Ellison,  14  Ark.  360;  McLane  v.  Manning,  1  Wins.  (N. 
C.)  No.  2,  (Eq.)  60;  though,  where  the  facts  are  stated  with  distinctness 
and  precision,  an  allegation  of  fraud  toiidem  verbis  is  not  required : 
McCalmont  v.  Kankin,  8  Hare  1 ;  Skrine  v.  Simmons,  11  Ga.  401  ;  Ken- 
nedy V.  Kennedy,  2  Ala.  571. 


364  ADAMS's    DOCTRINE     OF     EQUITY. 

be  made  or  acts  to  be  done  by  means  of  wilful  misrepre- 
sentation, either  express  or  implied,  and  the  procuring 
them  to  be  made  or  done  by  persons  under  duress  or  in- 
capacity.^ 

In  order  to  constitute  a  fraud  of  the  first  class,  there 
must  be  a  representation,  express  or  implied,  false  within 
the  knowledge  of  the  party  making  it,  reasonably  relied 
P^-  ^^l    on  by  the  other  party,  and  constituting  a  mate- 
rial inducement  *to  his  contract  or  act.^     If  the 

^  In  Chesterfield  v.  Janssen,  2  Ves.  125,  Lord  Ilardwicke  made  the 
celebrated  division  of  fraud,  since  so  often  recognised,  into  four  classes, 
viz. :  Ist.  Fraud  arising  from  facts  and  circumstances  of  imposition ;  2d. 
Fraud  arising  from  the  intrinsic  value  and  subject-matter  of  the  bargain 
itself;  3d.  Fraud  presumed  from  the  circumstances  and  condition  of  the 
parties  contracting ;  4th.  Fraud  affecting  third  persons  not  parties  to  the 
agreement.     See  the  notes  to  this  case  in  1  Lead.  Cas.  Eq.  428. 

^  A  false  and  fraudulent  representation  of  a  material  fact,  constituting 
an  inducement  to  the  contract,  and  on  which  the  vendee  relied,  and  had  a 
right  to  rely,  is  a  ground  for  rescission ;  and  it  appears  to  be  generally 
held  in  the  United  States,  that  the  principle  equally  applies,  where  the 
party  making  the  representation  was  ignorant  whether  it  were  true  or 
false:  Hough  v.  Richardson,  3  Story  659;  Harding  v.  Randall,  15  Maine 
332 ;  Pratt  v.  Phillbrook,  33  Id.  17  ;  Lewis  v.  McLemore,  10  Yerg.  206  ; 
Turnbull  v.  Gadsden,  2  Strob.  Eq.  14 ;  Rosevelt  v.  Fulton,  2  Cowen  129  ; 
Smith  V.  Babcock,  2  Wood.  &  M.  246 ;  Hunt  v.  Moore,  2  Penn.  St.  105 ; 
Smith  V.  Richards,  13  Peters  26  ;  Joice  v.  Taylor,  6  Gill  &  John.  54 ;  Taylor  v. 
Black,  13  How.  U.  S.  230;  Reese  v.  Wyman,  9  Ga.  439 ;  Taymon  v.  Mitchell, 
1  Md.  Ch.  496  ;  Smith  v.  Robertson,  23  Ala.  312 ;  Belknay  r.  Sealey,  2  Duer 
(N.  Y.)  570 ;  Lanier  v.  Hill,  25  Ala.  554 ;  York  v.  Gregg,  9  Texas  85 ;  Oswald 
V.  McGehee,  28  Miss.  340  ;  see  Pulsford  v.  Richards,  17  Jurist  865  ;  17  Beav. 
87  ;  Reynell  v.  Sprye,  8  Hare  222 ;  1  De  G,,  M.  &  G.  660.  The  tendency 
both  in  England  and  in  this  country,  seems  to  be  to  make  a  party  liable 
for  representations  not  known  by  him  to  be  true,  as  well  as  for  those  which 
he  actually  knows  to  be  false  :  Hill  on  Trustees  146  ;  Sharp  v.  Mayor,  40 
Barb.  256;  Thompson  v.  Lee,  31  Ala.  292;  Wheelden  v.  Lowell,  50  Maine 
499.  It  is  not  material  that  the  misrepresentation  was  merely  by  an 
agent:  Fitzsimmons  v.  Goslin,  21  Verm.  129  ;  Brooke  v.  Berry,  2  Gill  83  ; 
or  by  partner :  Blair  v.  Bromley,  2  Phillips  425 ;  Beebe  v.  Young,  14  Mich. 
136  ;  May  v.  Snyder,  22  Iowa  525  ;  Phillips  v.  Hollister,  2  Cold.  269.  But 
if  the  agreement  be  fair  between  the  parties,  it  is  not  invalid  because 


OF    RESCISSION    AND    CANCELLATION.  365 

faei  concerning  which  the  representation  is  made  is  not  a 
material  inducement  to  the  contract  or  act,  there  is  no 
reason  why  a  misstatement  of  it  should  vitiate  what  has 

brought  about  by  a  third  person  to  benefit  himself:  Bellamy  v.  Sabine,  2 
Phillips  425  ;  Blackie  v.  Clarke,  22  L.  J.  Ch.  377.  Or  even  though  brought 
ah»out  by  fraudulent  misrepresentations  on  the  part  of  such  third  person : 
Fisher  r.  Boody,  1  Curtis  206. 

In  Turner  c.  Navigation  Co.,  2  Dev.  Eq.  236,  however,  it  was  held  that 
in  the  case  of  a  written  [contract,  representations  made  bond  Jide,  must 
have  been  inserted  in  the  contract  to  be  relieved  against ;  and  this,  though 
the  language  of  some  of  the  cases  seems  to  go  much  further,  is  on  principle 
the  true  doctrine.  See  Attwood  v.  Small,  6  CI.  &  Finn.  232.  Where  both 
parties  have  equal  means  of  information,  so  that  by  the  exercise  of  ordi- 
nary prudence  and  diligence,  either  may  rely  upon  his  own  judgment, 
misrepresentations,  though  false,  will  not  be  considered  fraudulent :  Hobbs 
V.  Parker,  31  Maine  143  ;  Yeates  v.  Pryer,  6  Eng.  (Ark.)  68  ;  Hallr.Thom- 
son,  1  Sm.  &  Marsh.  443  ;  Tindall  v.  Ilarkinson,  19  Ga.  448  ;  Rockafellow 
V.  Baker,  41  Penn.  St.  319.  And  so  if  a  vendee  becomes  acquainted  with 
the  fraud  before  completing  his  bargain,  and  chooses  to  go  on,  a  court  of 
equity  will  not  help  him  :  Pratt  r.  Philbrook,  33  Maine  17  ;  Knuckolls  v. 
Lea,  10  Humph.  577  ;  see  Yeates  v.  Pryor,  6  Eng.  (Ark.)  68  ;  Scott  v.  Gam- 
ble, 1  Stockt.  218.  But  a  contract  may  be  set  aside  for  fraudulent  misre- 
presentations, though  the  means  of  obtaining  information  were  fully  open 
to  the  party  deceived,  where,  from  the  circumstances,  he  was  induced  to 
rely  upon  the  other  party's  information  :  Reynell  v.  Sprye,  8  Hare  222 ;  1 
Dc  G.,  M.  &  G.  660.  Misrepresentations  of  value,  or  of  other  matters 
which  are  only  of  opinion,  also  will  not  be  relieved  against :  Warner  v. 
Daniels,  1  Wood.  &  Min.  90 ;  Hough  v.  Richardson,  3  Story  659  ;  Speigle- 
myer  r.  Crawford,  6  Paige  Ch.  254 ;  Juzan  v.  Toulmin,  9  Ala.  662 ;  Smith 
V.  Richards,  13  Pet.  26  ;  Glasscock  v.  Minor,  11  Mo.  655  ;  Hutchinson  v. 
Browne,  1  Clark  Ch.  408  ;  Coil  v.  Pittsburgh  College,  40  Penn.  St.  445.  See 
also,  Wambaugh  v.  Bimer,  25  Md.  368.  If,  however,  there  is  some  fiduciary 
relationship  between  the  parties :  Spence  v.  Whittaker,  3  Porter  297  ;  or 
in  resisting  specific  performance,  misrepresentations  of  value  may  become 
important.  Misrepresentations  must  be  made  in  respect  to  matters  of  fact 
and  not  of  law :  People  ».  San  Francisco,  27  Cal.  655 ;  and  see  also, 
Jordan  v.  Stevens,  51  Maine  78. 

As  to  false  representations  and  concealment  in  a  prospfjctus  or  advertise- 
ment of  a  projected  railway  or  similar  company,  by  which  parties  are  in- 
duced to  become  shareholders,  see  Jennings  v.  Broughton,  17  Jur.  905 ;  17 
Bea.  234  :  Pulsford  v.  Richards,  17  Jur.  865;  17  Bea.  87  ;  Denton  r.  Mac- 
Neil,  L.  R.  2  Eq.  352. 


366  ADAMS's    DOCTRINE    OF    EQUITY. 

been  done ;  {I)  and  if  the  misstatement  has  not  been  relied 
on,  or  not  reasonably  relied  on,  by  the  complaining  party, 
the  same  reasoning  will  apply.  Such,  for  example,  will 
be  the  case,  if  the  party  to  whom  the  representation  is 
made  resorts  to  the  proper  means  of  verification,  so  as  to 
show  that  he  in  fact  relied  on  his  own  inquiries  ;  or  if  the 
means  of  investigation  and  verification  are  at  hand,  and 
his  attention  is  drawn  to  them ;  or  if  the  representation 
regards  a  mere  matter  of  opinion  or  inference,  with  re- 
spect to  which  both  parties  have  equal  means  of  forming  a 
judgment.^  But  it  would  be  different  if  he  were  prevented 
by  an}'"  artifice  of  the  other  party  from  making  such  full 
inquiry  as  he  would  otherwise  have  made.(m)  For  this 
reason  a  contract  is  not  vitiated  by  a  mere  false  assertion 
of  value  on  the  part  of  the  seller ;  nor  by  vague  and  inde- 
finite terms  of  commendation  ;  (w)  nor  by  a  mere  misstate- 
ment by  the  buyer  of  his  motive  in  purchasing  or  in 
limiting  the  amount  of  his  offer ;  for  these  are  not  repre- 
sentations on  which  a  man  can  reasonably  rely.(o)  Nor 
will  the  mere  employment  of  one  person  to  bid  at  an  auc- 
tion on  the  owner's  behajf,  though  not  notified,  be  a  fraud 
in  equity,  provided  he  be  bond  fide  employed  to  prevent  a 

(0  Attwood  V.  Small,  6  CI.  &  F.  232,  502 ;  Phillips  v.  Duke  of  Buck- 
ingham, 1  Vern.  227  ;  Fellowes  v.  Lord  Gwydyr,  1  R.  &  M.  83  ;  Crosbie  v. 
Tooke,  1  M.  &  K.  431 ;  Nelthorpe  v.  Holgate,  1  Coll.  203 ;  1  Sug.  V.  &  P. 
348-351. 

(m)  Clapham  v.  Shillito,  7  Bea.  146  ;  Attwood  v.  Small,  6  CI.  &  F.  232, 
503.     . 

(n)  1  Sug.  V.  &  P.  3,  4 ;  White  v.  Cuddon,  8  CI.  &  F.  766. 

(o)  Vernon  v.  Keys,  12  East  632. 

^  False  reasoning  upon  facts  truly  stated  is  no  ground  for  relief  in  equity  : 
Bowman  v.  Bates,  2  Bibb  47.  So,  also,  if  a  vendor  falsely  assert  that  he 
paid  a  much  greater  price  than  he  actually  paid  for  the  land :  Best  v. 
Blackburns,  6  Litt.  51  ;  Nicol's  Case,  3  De  G.  &  J.  437. 


OP    RESCISSION    AND    CANCELLATION.  367 

sale  at  an  under  value. ^  But  it  is  otherwise  if  the  inten- 
tion is  to  take  advantage  of  the  eagerness  of  bidders  in 
screwing  up  the  price,  or  if  there  is  an  announcement  that 
the  sale  is  without  reserve,  which  implies  that  such  a 
course  will  not  be  taken,  (jo) 

*The  requirement  that  the  representation  shall  p^-.  yo-i 
be  not  only  false,  but  false  within  the  knowledge 
of  the  party  making  it,  distinguishes  a  fraudulent  repre- 
sentation inducing  to  a  contract  from  an  erroneous  afl&r- 
mation  embodied  in  it  by  way  of  warranty  or  covenant.^ 
Affirmations  of  this  latter  kind  bind  the  party  making 
them,  although  he  were  himself  honestly  mistaken,  be- 
cause he  has  explicity  agreed  that  they  shall  do  so;  but 
if  a  warranty  or  covenant  is  not  given,  a  mere  representa- 
tion honestly  made,  and  believed  at  the  time  to  be  true 
by  the  party  making  it,  though  not  true  in  fact,  does  not 
amount  to  fraud,  (q) 

Where  no  statement  has  been  expressly  made  a  mis- 
representation may  nevertheless  be  implied  from  conduct. 
But  mere  nondisclosure  is  generally  not  equivalent  to 
fraud.  The  ordinary  maxim  of  law  is  "caveat  emptor;" 
and  this  maxim  authorizes  a  contracting  party  to  remain 
silent,  and  to  avail  himself  so  far  as  he  can  of  his  superior 
knowledge.  If,  for  example,  I  treat  for  the  purchase  of 
an  estate,  knowing  that  there  is  a  mine  under  it,  and  the 

{p)  Smith  V.  Clarke,  12  Ves.  477 ;  Woodward  v.  Miller,  2  Coll.  279 ; 
Thornett  v.  Haines,  15  Mee.  &  W.  367 ;  15  Law.  J.  Exch.  230 ;  1  Sug.  V. 
&  P.  c.  i.,  8.  2. 

[q]  Pasley  v.  Freeman,  3  T.  R.  51 ;  Freeman  v.  Baker,  5  B.  &  Ad.  797; 
Ormrod  r.  Huth,  14  Mee.  &  ^Y.  651 ;  14  Law  J.  Exch.  366. 

*  Though  see  Pennock's  App.,  14  Penn.  St.  446 ;  Staines  v.  Shore,  16  Id. 
200,  contra. 

*  See  Spence  v.  Duren,  3  Ala.  251. 


368  .     ADAMS's    DOCTRINE    OF    EQUITY. 

other  party  makes  no  inquiry,  I  am  not  bound  by  law  to 
inform  him  of  the  mine.(r)^ 

There  are,  however,  cases  of  a  different  character, 
where  the  contract  is  necessarily  based  on  the  assumption 
of  a  full  disclosure,  and  where  for  that  reason,  any  degree 
of  reticence  on  a  material  point  is  fraud.  Such,  for  in- 
stance, is  the  case  where  the  seller  of  real  estate,  know- 
ing a  fact  material  to  the  validity  of  his  title,  delivers  an 
abstract  which  does  not  disclose  it;  for  the  knowledge  of 
his  title  is  confined  to  himself;  and  the  purchaser  con- 
tracts on  the  assumption  that  the  real  title  will  be  shown.  (5) 
It  has  been  further  decided  at  law  that,  even  though  an 
r*1 7Q1  ^^^^^^^  ^^  ^^1^  *with  all  the  faults,  so  as  expressly 
to  free  the  seller  from  responsibility,  yet  if  he 
falsely  represent  that  a  particular  defect  does  not  exist, 
or  if  he  use  any  artifice  to  disguise  a  defect  or  to  prevent 
its  discovery,  the  contract  may  be  set  aside.  (^)^ 

(r)  Turner  v.  Harvey,  Jac.  169,  178  ;  Dykes  v.  Blake,  4  B.  N.  C.  463  ; 
Gibson  V,  D'Este,  2  N.  C^  C.  542 ;  [aliter,  if  there  were  artifices  used  to 
conceal  the  fact:  Bowman  v.  Bates,  2  Bibb  47.] 

(*)  Edwards  v.  McLeay,  Coop.  308  ;  2  Swanst.  287. 

[t]  Baglehole  w.  Walters,  3  Camp.  154;  Sehneider  v.  Heath,  Id.  506; 
1  Sug.  V.  &  P.  545-552. 

^  In  a  recent  case  in  Pennsylvania  it  was  held,  following  the  dictum  of 
Lord  Thurlow,  cited  above,  that  a  sale  of  land  could  not  be  rescinded  on 
the  ground  that  the  purchaser  had  not  disclosed  the  existence  of  a  valuable 
mine  on  the  property,  which  he  had  discovered,  there  being  otherwise  no 
fraud  in  the  transaction :  Harris  r.  Tyson,  24  Penn.  St.  369, 

'  Where  concealment  amounts  to  a  wilful  suppression  by  one  party,  for 
his  own  benefit  and  to  the  injury  of  the  other,  of  material  facts  which  the 
former  was  bound  not  merely  morally  but  legally  to  communicate,  it  will 
amount  to  a  case  of  fraud  against  which  equity  will  relieve.  See  Wall  v. 
Thompson,  1  Sm.  &  M.  443  ;  Young  v.  Bampass,  1  Freeman  Ch.  241 ;  Arm- 
stead  r.  Hundley,  7  Gratt.  52 ;  Torrey  v.  Buck,  1  Green  Ch.  366 ;  White  v. 
Cox,  3  Heyw.  79 ;  Jopling  v.  Dooley,  1  Yerg.  290 ;  Napier  v.  Elam,  6  Id. 
108;  Snelson  v.  Franklin,  6  Munf.  210;  Bryant's  Ex'rs.  v.  Boothe,  30  Ala, 
311 ;  Story's  Eq.,  ^  207  ;  Laidlaw  v.  Organ,  2  Wheat.  178  ;  Lancaster  Co. 


OF    RESCISSION    AND    CANCELLATION.  369 

The  principle  which  treats  nondisclosure  as  equivalent 
to  fraud,  when  the  circumstances  impose  a  duty  that  the 
disclosure  should  be  made,  is  especially  material  in  res- 
pect to  contracts  of  insurance  and  suretyship.  For  the 
risk  which  the  insurer  undertakes  and  the  contract  Avhich 
the  surety  guarantees,  can  only  be  learned  from  the  re- 
presentation of  the  party  insured  or  guarantied.  If,  there- 
fore the  insured  does  not  state  to  the  insurer  truly  and 
fully  all  the  facts  within  his  private  knowledge,  which 
w^ould  vary  materially  the  object  of  the  policy  and  change 
the  risk  understood  to  be  run,  the  policy  is  void.  Nor  is 
it  an  excuse  that  the  concealment  was  attributable  to  the 


Bank  v.  Albright,  21  Penn.  St.  223.  The  limits  beyond  which  concealment 
becomes  fraudulent  are  very  difficult  to  determine.  Chancellor  Kent  at 
one  time  advanced  the  doctrine  that "  each  party  is  bound  to  communicate 
to  the  other  his  knowledge  of  material  facts,  provided  he  knows  him  to  be 
ignorant  of  them,  and  they  be  not  open  or  naked :"  2  Kent  Comm.  482. 
But  this,  in  later  editions  of  his  Commentaries,  he  considerably  modified. 
It  would  seem,  indeed,  that  in  ordinary  circumstances  the  concealment 
must  have  something  active  in  its  character  to  amount  to  fraud.  Where, 
however,  the  parties  stand  towards  each  other  in  any  relation  of  a  fiduciary 
or  quasi-fiduciary  character,  as  in  the  case  of  solicitor  and  client :  Higgins 
V.  Joyce,  2  Jones  &  Lat.  282 ;  or  of  co-partners :  Ogden  v.  Astor,  4  Sandf. 
S.  C.  312;  Farnam  v.  Brooks,  9  Pick.  234  ;  or  of  members  of  the  same 
family  dealing  in  that  character  as  to  their  rights :  Gordon  v.  Gordon,  3 
Swans.  400 ;  the  obligation  to  disclosure  becomes  imperative.  See  Story 
Eq.,  1 217-18.  See,  however,  Crane  v.  Hewitt,  2  Halst.  Ch.  631 ;  but  qu.  as 
to  that  case. 

Where  it  does  not  appear  that  a  party  knew  a  fact  alleged  to  have  been 
concealed,  or  had  had  better  opportunity  to  know  it  than  the  other,  equity 
will  not  interfere  :  Perkins  v.  McGavock,  Cooke  415. 

Where  an  encumbrance  is  concealed  by  the  vendor  from  the  vendee,  but 
is  removed  by  the  vendor  before  decree  in  a  bill  for  rescission  filed  by  the 
vendee,  the  Court  refused  to  rescind  the  contract :  Davidson  v.  Moss,  5 
How.  (Miss.)  673.  But  when  an  encumbrance  is  not  removed,  although  it 
be  recorded  at  the  time  the  contract  was  entered  into,  equity  will  rescind 
the  contract:  Campbell  r.  Whittingham,  5  J.  J.  Marsh.  96;  Napier  v. 
Elam,  6  Yerg.  108. 
24 


370  ADAMS's    DOCTRINE    OF    EQUTY. 

fraud  or  neglect  of  an  agent,  or  that  the  account  concealed 
was  false,  or  in  no  way  referred  to  the  subsequent  cause 
of  loss,  or  was  not  believed  by  the  insurer  to  be  material 
or  was  not  concealed  with  a  fraudulent  design,  (m)  And 
in  like  manner  if  a  contract  is  guarantied  by  a  surety,  and 
a  fact  materially  affecting  the  nature  of  that  contract  is 
misrepresented  to  him  or  concealed  from  him,  with  the 
knowledge  or  consent  of  the  party  accepting  the  guaran- 
tee, the  surety  ceases  to  be  liable,  (z;)^ 

Another  case  of  the  same  character  occurs  in  compo- 
sitions by  a  debtor  with  his  creditor,  where  a  secret  bar- 
gain has  been  made  with  particular  creditors.  The  very 
circumstances  that  some  creditors  have  already  executed, 
r*1  J^m  ^^  ^^  inducement  *to  the  rest  to  follow  their  ex- 
ample. The  reason  why  they  have  so  executed 
can  only  be  known  by  the  other  creditors  from  the  rep- 
resentation of  the  debtor;  and  if  the  real  reason  is  the 
result  of  any  secret  arrangement,  the  influence  of  their 
example  is  a  fraud  on  the  rest.  All  such  secret  arrange- 
ments, therefore,  are  utterly  void;  they  cannot  be  en- 
forced even  against  the  debtor  himself,  and  money  paid 
under  them  may  be  recovered  back,  as  having  been 
obtained  against  the  clear  principles  of  public  policy,  (w) 

In  like  manner  a  secret  agreement  on  marriage,  in 

(«)  Carter  r.  Boehm,  3  Burr.  1906;  Smith  Merc.  Law,  358-363,  374; 
De  Costa  v.  Scandret,  2  P.  Wms.  170 ;  Whittingham  v.  Thornburg,  2  Vern. 
206 ;  Fenn  v.  Craig,  3  Y.  &  C.  216 ;  Kemp  v.  Pryor,  7  Ves.  237,  249 ; 
Jervis  v.  White,  Id.  413. 

(r)  Pidcock  v.  Bishop,  3  B.  &  C.  605  ;  Stone  v.  Compton,  5  B.  N.  C.  142; 
Hamilton  v.  Watson,  .12  CI.  &  F.  109. 

{w)  Jackman  v.  Mitchell,  13  Ves.  581 ;  Ex  parte  Sadler  and  Jackson,  15 
Id.  52 ;  Smith  Merc.  Law  702. 

^  But  not  if  misrepresentation  was  of  the  law :  Reed  v.  Sidener,  32 
Ind.  373. 


OF    RESCISSION    AND    CANCELLATION.  371 

fraud  of  the  relations  or  friends  of  one  of  the  parties,  will 
be  relieved  against  in  equity ;  e.  g.y  an  agreement  under 
which  a  fortune  paid  is  in  part  privately  received  back,  or 
a  bond  of  indemnity  given  for  the  amount ;  for  it  is  a  de- 
ception practised  on  the  other  parties  to  induce  a  larger 
settlement  than  they  would  otherwise  have  made.(:r) 
And  a  bond  given  for  assisting  a  clandestine  marriage 
has  been  set  aside,  though  given  voluntarily  after  the 
marriage,  and  without  any  previous  arrangement,  (y) 

Another  class  of  transactions  which  have  been  held 
void,  as  amounting  to  a  fraud  on  the  marriage  contract, 
are  conveyances  by  an  unmarried  woman  of  her  property, 
pending  a  treaty  of  marriage,  without  the  knowledge  of 
her  intended  husband.^ 

K  a  woman  entitled  to  property  enters  into  a  treaty 
for  marriage,  and  during  the  treaty  represents  to  her 
intended  husband  that  she  is  so  entitled,  that  upon  the 
marriage  he  will  become  entitled  Jure  mariti ;  and  if, 
during  the  same  treaty,  she  clandestinely  conveys  away 
the  property,  either  for  the  benefit  of  a  third  person,  or 

(x)  Palmer  v.  Neave,  11  Ves.  165;  Turton  v.  Benson,  1  P.  Wms.  496^ 
Thompson  v.  Harrison,  1  Cox  344. 

(y)  Williamson  v.  Gihon,  2  Sch.  &  L.  357. 

^  See  Linker  v.  Smith,  4  Wash.  C.  C.  224 ;  Logan  v.  Simmons,  3  Ired. 
Eq.  487  ;  Tucker  v.  Andrews,  13  Maine  124;  Waller  v.  Armistead,  2  Leigh 
11 ;  Manes  v.  Durant,  2  Rich.  Eq.  404;  Wrigley  w,  Swainson,  3  De  G.  & 
Sm.  458  ;  Freeman  ».  Ilartman,  45  111.  57  ;  Chambers  v.  Crabbe,  34  Bea. 
457 ;  see  notes  to  Countess  of  Strathmore  v.  Bowes,  1  Lead.  Cas.  Eq.  325, 
3d  Am.  ed.  In  Petty  r.  Petty,  4  B,  Monr.  215,  the  same  rule  was  applied 
to  the  case  of  a  husband  who  conveyed  his  property  in  fraud  of  the  rights 
of  his  second  wife.  See  Lewellen  v.  Cobbold,  1  Sm.  &  Giff.  376.  So,  on 
the  other  hand,  a  conveyance  by  a  husband,  pending  proceedings  for  a 
divorce  on  the  part  of  a  wife,  in  order  to  avoid  the  eflFects  of  a  decree  for 
alimony,  will  be  set  aside  :  Blenkinsopp  v.  Blenkinsopp,  1  De  G.,  M.  &.  G. 
495.  See  Krupp  v.  Scholl,  10  Penn.  St.  193 ;  see  also  Kline's  Estate,  64 
Id.  122. 


372  ADAMS's    DOCTRINE    OF    EQUITY. 

to  secure  to  himself  the  separate  use  of  it,  and  the  con- 
cealment continues  till  the  marriage  takes  place,  there 
can  be  no  doubt  that  a  fraud  is  practised  on  the  husband. 
If  both  the  property  and  the  mode  of  its  conveyance, 
r*isn  P^^^i^S  ^^^®  marriage  *treaty,  were  concealed 
from  the  intended  husband,  there  still  is,  or  may 
be,  a  fraud  practised  on  him.  It  is  true  that  the  non- 
acquisition  of  the  property  is  no  disappointment,  but  still 
his  legal  right  is  defeated ;  and  the  conveying  of  the  pro- 
perty for  the  benefit  of  a  third  person,  or  the  vesting  and 
continuance  of  separate  property  in  his  wife,  is  a  surprise 
upon  him,  and  might  if  previously  known,  have  induced 
him  to  abstain  from  the  marriage.  The  mere  fact,  how- 
ever, of  concealment  from  the  husband,  or  rather  the 
non-existence  of  communication  to  him,  is  not  necessarily 
and  under  all  circumstances  equivalent  to  fraud.  In  the 
absence  of  any  representation  as  to  specific  property, 
there  is  no  implied  contract  on  the  part  of  the  lady  that 
her  property  shall  not  be  in  any  way  diminished  before 
the  marriage ;  but  it  is  for  the  Court  to  determine  in  each 
case  whether,  having  regard  to  the  condition  of  the  parties, 
and  the  other  attendant  circumstances,  a  transaction  com- 
plained of  by  the  husband  should  be  treated  as  fraudulent.^ 
Several  circumstances  appear  to  have  been  thought  mate- 
rial as  negativing  the  imputed  fraud  j  such,  for  instance, 
as  the  poverty  of  the  husband — the  fact  that  he  has  made 
no  settlement  upon  the  wife — the  fulfilment  of  a  moral 
or  legal  obligation,  as  in  the  case  of  a  settlement  upon  the 
children  of  a  former  marriage,^  or  of  a  bond  given  to  secure 
a  debt  contracted  for  a  valuable  consideration, — and  the 
ignorance  of  the  husband  that  his  wife  possessed  the  pro- 

1  See  Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458. 
VGreen  v.  Goodall,  1  Cold.  (Tenn.)  404. 


OF    RESCISSION    AND    CANCELLATION.  373 

perty.  There  can  be  no  doubt  that  any  of  these  facts 
would  be  a  good  ground  for  insisting  that  the  husband 
should  make  a  settlement,  and  for  determining  the  mar- 
riage contract  if  he  should  refuse  to  do  so ;  but  it  is  not 
so  easy  to  understand  why  they  should  constitute  reasons 
for  practising  concealment  on  him,  or  for  treating  such 
concealment  as  immaterial.  Where,  however,  in  addition 
to  these  circumstances,  there  was  this  further  fact  in 
extenuation  of  the  concealment,  that  the  husband  had 
brought  the  intended  wife  to  his  house,  and  had  induced 
her  to  cohabit  with  him  before  the  marriage,  it  was  held 
conclusive  against  relief.  For,  it  was  said  by  the 
Court,  *that  by  the  husband's  conduct  towards  p:,.^  go-i 
her,  retirement  from  the  marriage  on  her  part 
was  made  impossible.  She  must  have  submitted  to  a 
marriage  with  her  seducer,  even  though  he  should  have 
insisted  on  receiving  and  spending  the  whole  of  her  for- 
tune ;  and  the  only  method  of  protection  left  her  was  to 
make  a  settlement  without  his  knowledge.  (0) 

Besides  that  kind  of  fraud,  which  consists  in  misrepre- 
sentation, express  or  implied,  there  is  another,  not  less 
odious,  which  vitiates  contracts  made  by  persons,  who,  at 
the  time  of  making  such  nominal  contracts,  are  under 
duress  or  incapacity. 

If  an  act  be  done  under  actual  duress,  it  may  be  after- 
wards avoided  even  at  law  ;  e.  g.,  if  a  man  is  induced  to 
execute  a  deed  through  fear  of  death  or  mayhem,  or  by 
an  illegal  restraint  of  his  liberty.  And  in  such  case, 
though  its  execution  be  accompanied  by  all  requisite 
solemnities,  yet  he  may  allege  the  duress  and  avoid  the 
extorted  deed.     But  if  a  man  be   lawfully  imprisoned, 

(z)  Goddard  r.  Snow,  1  Russ.  485 ;  England  v.  Downs,  2  Bear.  522 ; 
Taylor  r.  Pugh,  1  Hare  608. 


374  ADAMS's    DOCTRINE     OF    EQUITY. 

and  either  to  procure  his  discharge,  or  on  any  other  fair 
account,  seals  a  deed,  this  is  not  by  duress  of  imprison- 
ment, and  he  is  not  at  liberty  to  avoid  it.  («)^ 

The  conveyances  and  contracts  of  idiots  and  lunatics 
(except  during  a  lucid  interval)  are  also,  generally  speak- 
ing, void  at  law.  But  the  feoffment  of  an  insane  person 
is  held  not  to  be  absolutely  void,  but  voidable  only,  owing 
to  the  solemnity  of  livery  with  which  it  is  accompanied; 
and  for  this  reason  it  is  held  that  he  cannot  himself  set  it 
aside  at  law  after  his  recovery ;  although  it  may  be  avoid- 
ed by  the  committee,  during  his  lunacy,  or  by  the  heir 
after  his  death.  (J)  ^ 

The  principle  on  which  a  deed  is  held  fraudulent,  on 
the  ground  of  lunacy,  is  that  it  has  been  obtained  from 
r*18S1  *^  person  who  at  the  time  of  execution  was  not 
capable  of  apprehending  its  effect,  but  the  mere 
fact  that  the  party  was  in  a  state  of  lunacy,  or  even  that 
he  was  under  confinement,  will  not  per  se  induce  the  Court 
to  interfere,  if  it  be  distinctly  shown  that  the  act  was 

ta)  2  Steph.  Bl.  131,  137. 

(6)  1  Steph.  Bl.  440  ;  2  Sug.  on  Pow.  179  ;  1  Story  on  Eq.  s.  223-229. 

^  McDaniel  v.  Moorman,  1  Harp.  Ch.  108 ;  Underwood  v.  Brockraan,  4 
Dana  319 ;  Brown  v.  Peck,  2  Wise.  261 ;  Thurman  v.  Burt,  53  111.  129 ; 
Jones  V.  Bridge,  2  Sweeny  (N.  Y.)  431. 

^  A  present  interest  passes  by  the  deed  of  a  lunatic,  which  is  not  void, 
but  voidable :  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh.  245  ;  Allis  v.  Bil- 
lings, 6  Mete.  415;  Price  r.  Berrington,  3  Macn.  &  G.  486;  Ballard  v. 
McKenna,  4  Rich.  Eq.  358  ;  Ingraham  v.  Baldwin,  5  Selden  45  ;  see  Mol- 
ton  V.  Camroux,  2  Exch.  487 ;  4  Id.  17 ;  Beals  v.  See,  10  Penn.  St.  60 ; 
though  see  Desilver's  Est.,  5  Rawle  111. 

As  to  the  parties  who  may  avoid  the  deed  of  a  lunatic,  see  Brecken- 
ridge V.  Ormsby,  1  J.  J.  Marsh.  248-250,  254  ;  Gates  v.  Woodson,  2  Dana 
454 ;  Ingraham  ».  Baldwin,  5  Selden  45. 

A  deed  made  by  the  grantor,  while  a  lunatic,  would  require  a  re-execu- 
tion when  he  was  of  sound  mind,  to  give  it  validity  :  Jones  et  al.  v.  Evans, 
7  Dana  96. 


OF    RESCISSION    AND    CANCELLATION.  375 

beneficial  to  him,  that  no   coercion  or  imposition  was 
used,  and  that  he  knew  clearly  what  he  was  doing,  (c)^ 

It  has  been  held  also  that,  independently  of  that  utter 
imbecility  which  will  render  a  man  legally  non  compos, 
a  conveyance  may  be  impeached  for  mere  weakness  of 
intellect,  provided  it  be  coupled  with  other  circumstances 
to  show  that  the  weakness,  such  as  it  was,  has  been  taken 
advantage  of  by  the  other  party.  But  the  mere  fact 
that  a  person  is  of  weak  understanding,  if  there  be  no 
fraud  or  surprise,  is  not  an  adequate  cause  for  relief,  (c?)^ 

(c)  Selby  v.  Jackson,  6  Beav.  192 ;  13  L.  J.  249. 

(d)  Blachford  v.  Christian,  1  Knapp  73  ;  Ball  v.  Mannin,  3  Bligh.  N.  S. 
1 ;  1  Story  on  Eq.  s.  234-237. 

^  There  is  a  distinction  between  cases  of  rescission  and  a  defence  in 
equity  to  the  enforcement  of  an  incidental  equitable  remedy  on  a  deed 
'prima  facie  good,  upon  similar  grounds.  Thus,  though  insanity  would 
be  a  sufficient  ground  for  the  rescission  of  a  mortgage,  yet  on  a  bill  for 
forclosure,  such  a  defence  cannot  be  set  up,  where  the  deed  has  been  duly 
proved,  but  the  mortgagor  or  his  representatives  must  establish  the  in- 
validity of  the  security  at  law,  or  by  an  issue :  Jacobs  v.  Richards,  5  De 
G.,  M.  &  G.  55. 

^  Whipple  V.  McClure,  2  Root  216 ;  Whitehorn  v.  Hines,  1  Munf.  557  ; 
BuflFalow  t'.  Buffalow,  2  Dev.  &  Bat.  Ch.  241  ;  Rutherford  v.  Ruff,  4 
Dessaus.  350 ;  Deatley  v.  Murphy,  3  A.  K.  Marsh.  472 ;  McCormick  v. 
Malin,  5  Blackf.  509 ;  Hunt  v.  Moore,  2  Penn.  St.  105  ;  Ex  parte  Allen,  15 
Mass.  58  ;  Rippy  v.  Gant,  4  Ired.  Eq.  447  ;  Mann  v.  Betterly,  21  Verm. 
326  ;  Mason  v.  Williams,  3  Munf.  126  ;  Harding  v.  Handy,  11  Wheat.  103; 
Brogden  v.  Walker,  2  liar.  &  Johns.  285;  Whelan  v.  Whelan,  3  Cowen 
537  ;  Rumph  v.  Abercrombe,  12  Ala.  64;  Gratz  v.  Cohen,  11  How.  U.  S. 
1 ;  Brice  v.  Brice,  5  Barb.  S.  C.  533 ;  Brooke  v.  Berry,  2  Gill  83 ;  Crad- 
dock  V.  Cabiness,  1  Swan.  (Tenn.)  474 ;  Lansing  v.  Russell,  13  Barb.  S.  C. 
511  ;  Long  V.  Long,  9  Md.  348 ;  Cain  v.  Warford,  33  Id.  23 ;  Hill  v. 
McLaurin,  28  Miss.  288 ;  Marshall  v.  Billingsly,  7  Ind.  250 ;  Smith  v. 
Elliott,  1  Patt.  &  Heath  307 ;  Graham  v.  Pancoast,  30  Penn.  St.  89 ;  Nace 
V.  Boyer,  Id.  99 ;  Aiman  v.  Stout,  42  Id.  114;  see  further  on  this  subject, 
Prideaux  v.  Lonsdale,  1  De  G.,  J.  &  Sm.  443 ;  Clarke  v.  Malpus,  31  Beav. 
80;  Prewett  v.  Coopwood,  30  Miss.  369;  Gass  v.  Mason,  4  Sneed  497; 
Graham  v.  Little,  3  Jones  Eq.  152;  Oldham  v.  Oldham,  5  Id.  89  ;  Futrill 
V.  Futrill,  Id.  62;  Hunt  v.  Hunt,  2  Beas.  161  ;  Maddox  v.  Simmons,  31 


376  ADAMS'S    DOCTRINE    OF    EQUITY. 

A  person  drunk  to  the  extent  of  complete  intoxication, 
so  as  to  be  no  longer  under  the  guidance  of  reason,  ap- 
pears to  be  absolutely  incapable  of  making  a  contract,  so 
that  his  deed  is  void  at  law.  If  the  degree  of  intoxica- 
tion fall  short  of  this,  a  Court  of  equity  will  generally 
not  assist  the  other  party  in  enforcing  his  claim.  But  it 
seems  that  it  will  confine  itself  to  standing  neuter,  and 
will  not  relieve  against  the  instrument,  unless  the  con- 
tracting party  was  drawn  in  to  drink  by  the  contrivance 
of  the  other,  (e)^ 

The  same  principle  which  vitiates  a  contract  with  an 
incapacitated  person  is  extendedin  equity  to  avoid  benefits 

(e)  2  Sug.  on  Pow.  178  ;  Cooke  v.  Clayworth,  18  Ves.  12  ;  Lightfoot  v. 
Heron,  3  Y.  &  C.  586  ;  1  Story  on  Eq.  s.  230-233. 

Ga.  512 ;  Tally's  Ex'rs  v.  Smith,  1  Cold.  (Tenn.)  291 ;  Beller  v.  Jones,  22 
Ark.  92 ;  though  not  from  loss  of  memory  :  Thompson  v.  Gossitt,  23  Ark. 
175.  As  to  contracts  by  illiterate  persons,  see  Price  v.  Price,  1  De  G.,  M. 
&  G.  308  ;  Wilkinson  v.  Fawkes,  9  Hare  592. 

Monomania,  not  connected  with  the  subject  of  the  contract,  has  been 
held  not  to  be  a  cause  of  invalidity :  Boyce  v.  Smith,  9  Gratt.  704.  A 
contract  will  not  be  set  aside  on  the  ground  of  greater  superiority  of  in- 
tellect in  one  of  the  parties,  if  the  other  party  was  of  legal  capacity  to 
contract :  Thomas  v.  Sheppard,  2  McC.  Ch.  36.  And  the  mere  fact  that 
an  agreement  is  improvident,  is  no  ground  for  setting  it  aside  :  Green  v. 
Thompson,  2  Ired.  Ch.  365. 

^  And  see  to  the  same  effect  Morrison  v.  McLeod,  2  Dev.  &Bat.  Eq.  221 ; 
Hotchkiss  V.  Fbrtson,  7  Yerg.  67;  Hutchinson  v.  Brown,  1  Clarke  Ch. 
408  ;  Harbison  v.  Lemon,  3  Blackf.  51  ;  Maxwell  v.  Pittenger,  2  Green  Ch. 
156 ;  Whitesides  v.  Greenlee,  2  Dev.  Eq.  152 ;  Crane  v.  Conklin,  Saxt.  346  ; 
Calloway  r.  Witherspoon,  5  Ired.  Eq.  128 ;  Phillips  v.  Moore,  11  Mo.  600  ; 
Marshall  v.  Billingsly,  7  Ind.  250.  As  to  specific  performance,  however, 
se*  ante,  84,  note.  But  when  from  continued  habits  of  intoxication,  or 
from  excessive  drunkenness  at  the  time,  the  party  is  deprived  of  the  use 
of  reason  and  understanding,  this  is  sufficient,  by  itself,  to  invalidate  a 
contract:  Gore  v.  Gibson,  13  Mees.  &  Welsby  626  ;  Clifton  v.  Davis,  1  Pars. 
Eq.  31;  French  v.  French,  8  Hamm.  (Ohio)  214;  Harbisons.  Lemon,  3 
Black.  57.  And  see  further  on  this"  subject,  Lavette  v.  Sage,  29  Conn. 
577  ;  Futrill  v.  Futrill,  5  Jones  Eq.  61 ;  Dunn  v.  Amos,  14  Wis.  106. 


OF    RESCISSION    AND    CANCELLATION.  377 

obtained  by  trustees  from  their  cestuis  que  trustent,  or  by 
other  persons  sustaining  a  fiduciary  character  from  those 
in  regard  to  whom  that  character  exists.^ 

The  most  obvious  instance  of  this  doctrine  is  in  the  case 
of  actual  trustees.  If  a  trustee  be  appointed  for  the  sale 
or  purchase  of  property,  he  cannot  sell  to  or  purchase 
from  *himself,  however  honest,  in  the  particular  p^j.-. r^.-, 
case,  the  transaction  may  be.  For  if  he  were 
permitted  to  buy  or  sell  in  an  honest  case,  he  might  do 
so  in  one  having  that  appearance,  but  which,  from  the  in- 
firmity of  human  testimony,  might  be  grossly  otherwise. 
It  is  not,  therefore,  necessary  to  show  that  an  improper 
advantage  has  been  made;  but  the  cestui  que  trust,  if  he 
has  not  confirmed  the  transaction  with  full  knowledge  of 
the  facts,  may,  at  his  option,  set  it  aside.  The  rule,  how- 
ever, which  imposes  this  absolute  incapacity,  applies  to 
those  cases  only  where  a  trustee  attempts  to  purchase 
from  or  sell  to  himself.  There  is  no  positive  rule  that  he 
cannot  deal  with  his  cestui  que  trust;  but  in  order  to  do 


'  This  rule  is  very  constantly  acted  upon  in  the  United  States.  It  is 
applied  to  trustees,  guardians,  executors  and  administrators,  agents, 
assignees  in  bankruptcy,  or  attorneys ;  and  in  general  to  all  persons 
standing  in  any  fiduciary  position.  See  the  American  cases  collected, 
Hill  on  Trustees,  4th  Am',  ed.  243-256;  and  see  ante,  note,  p.  61.  In 
Smith  V.  Kay,  7  II.  L.  Cas.  750,  it  was  said  by  Lord  Cranworth  that  the 
cases  of  parent  and  child,  guardian  and  ward.  Sec,  are  but  instances  of 
the  application  of  a  general  principle  ;  while  Lord  Kingsdown  remarked 
that  the  rule  applied  to  every  case  "  where  influence  is  acquired  and 
abused — where  confidence  is  reposed  and  betrayed."  See  also  the  remarks 
of  Turner,  L.  J,,  in  Rhodes  r.  Bate,  L.  R.  1  Ch.  Ap.  257. 

The  director  of  a  railway  company  is  a  trustee,  and,  as  such,  is  pre- 
cluded from  dealing,  on  behalf  of  the  company,  with  himself,  or  with  a 
firm  of  which  he  is  a  partner :  Aberdeen  Ry.  Co.  v.  Blaikie  Brothers,  1 
Macq.  Scott.  App.  Cas.  461 ;  23  L.  T.  315  (H.  of  L.).  It  was  there  held, 
indeed,  that  the  rule  was  applicable  to  all  contracts,  indifierently,  whether 
as  to  real  estate,  or  personalty,  or  mercantile  transactions. 


378  ADAMS's    DOCTRINE    OF    EQUITY. 

SO,  he  must  fully  divest  himself  of  all  advantage  which 
his  character  as  trustee  might  confer,  and  must  prove,  if 
the  transaction  be  afterwards  impugned,  that  it  was  in  all 
respects  fair  and  honest.  (/)  In  like  manner  an  agent, 
who  is  employed  to  sell,  cannot  himself  become  secretly 
the  purchaser;  nor  can  an  agent,  who  is  employed  to  buy, 
buy  from  himself  or  from  his  own  trustee,  or  for  his  own 
benefit.  (^)  And  where  even  any  person  stands  in  a  re- 
lation of  special  confidence  towards  another,  so  as  to  ac- 
quire an  habitual  influence  over  him,  he  cannot  accept 
from  him  a  personal  benefit  without  exposing  himself  to 
the  risk,  in  a  degree  proportioned  to  the  nature  of  their 
connection,  of  having  it  set  aside  as  unduly  obtained.^ 

(/)  Supra,  Prohibition  of  personal  benefit  to  a  trustee. 
( g)  Gillett  ».  Peppercorne,  3  Beav.  78  ;  Taylor  v.  Salmon,  4  Myl.  &  Cr. 
134. 

^  See  notes  to  pages  57  and  61,  ante. 

A  court  of  equity  looks  with  extreme  jealousy  on  transactions  between 
parties  who  stand  in  any  fiduciary  relations,  or  relations  of  a  similar  char- 
acter, by  which  an  undue  influence  may  be  obtained  by  one  over  the  other, 
and  unless  he  who  receives  the  benefit  can  show  that  it  was  conferred  un- 
derstandingly,  and  Avith  full  knowledge  of  the  circumstances,  and  apart 
from  the  bias  of  that  connection,  will  set  them  aside.  This  rule  applies  to 
attorney  and  client:  Greenfield's  Est.,  14  Penn.  St.  504 ;  Leisenring  v. 
Black,  5  Watts  303 ;  Hockenbury  v.  Carlisle,  5  W.  «fc  S.  350 ;  Stockton  v. 
Ford,  11  How.  U.  S.  232;  Poillon  ».  Martin,  1  Sandf.  Ch.  569 ;  Salmon  v. 
Cutts,  4  De  G.  &  Sm.  131 ;  Robinson  v.  Briggs,  1  Sm.  &  G.  184  ;  Merritt  v. 
Lambert,  10  Paige  357;  2  Denio  607  ;  Howell  v.  Ransom,  11  Paige  538; 
Mott  V.  Harrington,  12  Verm.  199 ;  Brock  v.  Barnes,  40  Barb.  521  ;  Tyr- 
rell V.  The  Bank,  10  H.  Lds.  Gas.  26 ;  Spring  v.  Pride,  10  Jur.  N.  S.  646  ; 
Wall  V.  Cockerell,  10  H.  Lds.  Gas.  229 ;  Gresley  v.  Mousley,  4  De  G.  &  J. 
78  ;  and  where  a  client,  indebted  to  a  solicitor,  made  an  absolute  convey- 
ance, it  has  been  held  to  stand  as  a  mortgage  merely  :  Pearson  v.  Benson, 
28  Beav.  598 ;  Morgan  v.  Higgins,  5  Jur.  N.  S.  236.  But  the  rule  is  dif- 
ferent when  the  solicitor  has  assumed  the  hostile  attitude  of  a  pressing 
creditor :  Johnson  v.  Fesemeyer,  3  De  G.  &  J.  13.  And  agreements  be- 
tween attorney  and  client  were,  under  the  circumstances,  upheld  in  Moss 
V.  Bainbrigge,  6  De  G.,  M.  &  G.  292 ;  Blagrave  v.  Routh,  2  K.  &  J.  509 ; 
Clanricarde  v.  Henning,  30  Beav.  175  ;  and  a  gift  was  held  valid  in  Nesbit 


OF    RESCISSION    AND    CANCELLATION.  379 

An  attorney,  therefore,  purchasing  or  taking  a  benefit 
from  his  client,  whilst  the  relationship  of  attorney  and 
client  exists,  and  in  respect  of  that  matter  wherein  it 
exists,  must  show  that  he  took  no  advantage  of  his  in- 
fluence or  knowledge,  hut  gave  his  client  all  that  reason- 
able advice  against  himself  which  it  was  his  duty  to  have 
given  him  against  a  third  person.  (/^)  A  guardian,  taking 
from  his  ward,  is  bound  by  the  same  rule  ;  a  minister  of 
religion,  *taking  from  those  under  his  spiritual  r*-|oc-i 
charge,  may  be  bound  by  it  with  even  greater 
stringency .  (?y    The  same  general  principle  applies  to  all 

(A)  Edwards  v.  Meyrick,  2  Hare  60. 

(i)  Huguenin  f.  Basely,  14  Ves.  273  ;  Thompson  v.  HeflEernan,  4  Dru.  & 
W.  285. 

V.  Lockman,  34  N.  Y.  167.  The  rule  applies  also  to  parent  and  child: 
Slocum  V.  Marshall,  2  Wash.  C.  C.  397;  Taylor  v.  Taylor,  8  How.  U.  S. 
183 ;  Jenkins  v.  Pye,  12  Peters  249 ;  Houghton  v.  Houghton,  15  Beav. 
278  ;  Baker  v.  Bradley,  7  De  G.,  M.  &  G.  597 ;  King  v.  Savery,  1  Sm.  &  G. 
271 ;  5  H.  L.  Cas.  627  ;  though  the  transaction  may  be  validated  by  lapse 
of  time :  AVright  v.  Vanderplank,  2  K.  &  J.  1 ;  8  De  G.,  M.  &  G.  133 ; 
guardian  and  ward :  Johnson  v.  Johnson,  5  Ala.  90 ;  Caplinger  v.  Stokes, 
Meigs  175  ;  Bostwick  v.  Atkins,  3  Const.  53 ;  Williams  v.  Powell,  1  Ired. 
Eq.  460;  Scott  ».  Freeland,  7  Sm.  &M.  410;  Sullivan  v.  Blackwell,  28 
Miss.  737  ;  Wright  v.  Arnold,  14  B.  Monr.  638  ;  Witman's  Appeal,  28 
Penn.  St.  378 ;  Hawkins's  Appeal,  32  Id.  263  ;  physician  and  patient :  Bill- 
age  V.  Southee,  9  Hare  534;  Aherne  v.  Hogan,  1  Drury  310;  Whitehorn 
r.  Hines,  1  Munf.  559;  see,  however,  Daggett  r.  Lane,  12  Mo.  215;  clergy- 
men: Greenfield's  Estate,  24  Penn.  St.  232;  Nachtrieb  w.  The  Harmony 
Settlement,  3  Wallace,  Jr.  66 ;  or  other  relation,  connection,  or  position 
in  which  an  undue  advantage,  influence,  or  control  may  be  obtained  or 
exercised  over  the  judgment  of  another.  See  Cooke  v.  Lamotte,  15  Beav. 
234;  Ahearne  v.  Hogan,  1  Drury  310;  Espey  v.  Lake,  16  Jur.  1106;  10 
Hare  260 ;  James  i'.  Holmes,  8  Jur.  N.  S.  553,  732 ;  Sears  v.  Shafers,  2 
Seld.  268 ;  Harkness  v.  Eraser,  12  Fla.  336.  It  has  been  recently  held, 
however,  that  a  provision  in  a  will,  in  favor  of  the  solicitor  by  whom  the 
will  be  drawn,  will  not  be  held  void  in  equity,  unless  where  it  would  be 
so  held  at  law,  or  in  the  ecclesiastical  courts  :  Hindson  v.  Wetherell,  5 
De  G.,  M.  &  G.  301. 

As  to  contracts  by  trustees,  agents,  &c.,  see  ante,  61,  note. 

^  Greenfields  Estate,  24  Penn.  St.  232. 


380  ADAMS's    DOCTRINE    OF    EQUITY. 

the  variety  of  relations  in  which  dominion  may  be  ex- 
ercised by  one  person  over  another ;  but  in  proportion  as 
the  relationship  is  less  known  and  definite,  the  presump- 
tion of  fraud  is  less  strong.  Where  the  known  and  definite 
relationship  exists  of  trustees  and  cestui  que  trust,  attorney 
and  client,  or  guardian  and  ward,  the  conduct  of  the  party 
benefited  must  be  such  as  to  sever  the  connection,  and  to 
place  him  in  the  same  circumstances  in  which  a  mere 
stranger  would  have  stood,  giving  him  no  advantage  be- 
yond the  kindly  feeling  which  the  connection  may  have 
caused.  Where  the  only  relation  is  that  of  friendly  habits 
and  habitual  reliance  on  advice  and  assistance,  accompanied 
by  partial  employment  in  business,  care  must  be  taken  that 
no  undue  advantage  shall  be  made.^  But  no  rigorous  defi- 
nition can  be  laid  down,  so  as  to  distinguish  precisely  be- 
tween the  effects  of  natural  and  often  unavoidable  kindness, 
and  those  of  undue  influence  or  undue  advantage.  (^*) 

Another  instance  of  fraud  where  there  is  a  fiduciary 
relation  is  when  a  person  having  a  power  of  appointment 
for  the  benefit  of  others,  uses  it  by  contrivance  for  his 
own  benefit.  Thus,  if  a  parent  has  a  power  to  appoint  to 
such  of  his  children  as  he  may  choose,  he  cannot  appoint 
it  to  one  of  the  children  upon  a  bargain  beforehand  for  his 
own  benefit.  (/)^     It  was  also  formerly  held,  that  illusory 

(A;)  Hunter  ».  Atkins,  3  M.  &  K.  113 ;  Dent  v.  Bennett,  4  M.  &  C.  269. 
[l)  Daubenj  v.  Cockburn,  1  Meriv.  626 ;  2  Sug  on  Powers,  c.  xi.,  s.  2 ; 
[or  for  the  benefit  of  a  husband :  19  Jur.  50.] 

»  See  Miller  v.  Welles,  23  Conn.  21. 

"  The  fraudulent  exercise  of  a  power  upon  a  corrupt  bargain  as  to  one 
portion,  may  be  sustained  as  to  a  distinct  part  uninfluenced  by  such  bar- 
gain, though  both  by  the  same  deed :  Rowley  v.  Rowley,  18  Jur.  306  ;  1 
Kay  242 ;  23  L.  J.  Ch.  27o.  A  benefit  to  the  appointer,  is  a  corrupt 
motive,  though  such  benefit  does  not  come  out  of  the  fund  appointed, 
gemble:  Rowley  v.  Rowley,  ut  supra.  See,  also,  on  this  subject,  Ag»> 
».  Squire,  19  Jor.  (1  Id.  N.  S.)  50. 


OF    RESCISSION    AND    CANCELLATION.  381 

appointments  under  a  power  were  void  in  equity ;  i.  e., 
appointments  of  a  nominal,  instead  of  a  substantial  share 
to  one  of  the  members  of  a  class,  where  power  was  given 
to  appoint  amongst  them  all.  An  appointment  of  this 
kind  was  clearly  valid  at  law ;  and  it  would  perhaps  be 
difficult  *to  reconcile  with  principle  its  avoidance  p^i  q^-i 
in  equity.  The  doctrine  is  now  abolished  by 
statute,  (m)^ 

On  the  same  principle  it  is  held,  that  where  a  marriage 
is  required  to  be  by  consent  of  trustees,  and  the  trustees 
withhold  consent  from  a  corrupt  motive,  the  Court  of 
Chancery  may  interfere.  And  it  has  been  contended, 
that  if  the  person  whose  consent  is  required  is  interested 
in  refusing  it,  he  must  show  a  reason  for  his  dissent.  If, 
however,  the  creator  of  a  trust  chooses  to  require  the 
consent  of  a  person,  whom  he  knows  at  the  time  to  have 
an  interest  in  refusing  it,  it  is  difficult  to  conceive  an 
equity  for  interfering  with  his  choice.  And  at  all  events 
no  equity  will  arise  if  the  trustee  has  meant  to  act  hon- 
estly, though  his  decision  may  not  be  the  same  at  which 
the  Court  would  have  arrived,  (w) 

The  acts  which  have  been  hitherto  the  subject  of  in- 
quiry are  either  directly  fraudulent  at  law,  or  are  held 
fraudulent  in  equity  by  analogy  to  law.  There  is  an- 
other class  of  equitable  fraud  in  which  the  legal  analogy 
is  less    perceptible.     The  fraudulent   transactions    here 

(m)  Butcher  v.  Butcher,  9  Vee.  382 ;  1  Sug.  on  Powers,  c.  vii.,  s.  6 ;  11  , 
Geo.  4  &  1  Wm.  4,  c.  46. 

(n)  Clarke  v.  Parker,  19  Ves.  1. 

1  Stolworthy  v.  Sancroft,  10  Jur.  N.  S.  762 ;  Ward  r.JTyrrell,  25  Beav. 
563.  This  doctrine  has  been  disapproved  of  in  the  United  States:  see 
Fronty  t<.  Fronty,  1  Bail.  Eq.  529;  Cowles  v.  Brown,  4  Call  477;  Graeffu. 
De  Turk,  44  Penn.  St.  527 ;  ndle  to  Aleyn  v.  Belchier,  1  Lead.  Cas.  Eq. 
304,  3*  Am.  ed. 


382  ADAMS's    DOCTRINE    OF    EQUITY. 

referred  to  are  bargains  made  with  expectant  heirs  or 
remaindermen,  during  the  lifetime  and  without  the  know- 
ledge of  the  parent  or  other  ancestor.^  Bargains  of  this 
kind  are  not  necessarily  and  absolutely  void.  They  may 
be  sustained  ah  initio,  if  they  are  proved  free  of  unfairness 
or  inadequacy ;  or  they  may  be  made  good  afterwards  by 
the  bargainer,  either  by  express  confirmation  or  by  con- 
tinued acquiescence,  after  the  original  pressure  of  his  ne- 
cessities has  ceased,  (o)  But,  unless  they  can  be  sustained 
on  one  of  these  grounds,  they  may  be  set  aside  at  the  suit 
of  the  bargainer,  partly  as  having  been  made  under  the 
pressure  of  necessity,  but  principally  as  being  a  fraud  on 
r*l  R71  ^^^  parent  or  ancestor,  who  is  misled  into  leaving 
his  ^estate  not  to  his  heir  or  family,  but  to  a  set 
of  artful  persons,  who  have  divided  the  spoil  beforehand. 
The  decree  in  such  a  case  will  be  that  the  conveyance 
shall  be  set  aside  as  an  absolute  sale,  but  shall  stand  as  a 
security  for  the  principal  and  interest  of  the  money  ad- 

(o)  King  ».  Hamlet,  2  M.  &  K.456  ;  3  CI.  &  Fin.  218  ;  Roberts  v.  Tuns- 
tall,  4  Hare  257. 

*  See  Jenkins  et  al.  v.  Pye  et  al.,  12  Peters  241 ;  and  also  Varick  v.  Ed- 
wards, 1  Hoff.  Ch.  383,  where  it  was  held  that  the  sale  of  the  expectation 
of  an  heir  of  an  inheritance,  in  real  as  well  as  in  personal  estate,  will  be 
supported,  if  made  bond,  fide  and  for  a  valuable  consideration.  And  see 
Larrabee  v.  Larrabee,  34  Maine  477  ;  Powers'  Appeal,  63  Penn.  St.  443  ; 
Mastin  v.  Marlow,  65  N.  C.  695  ;  Lowry  v.  Spear,  7  Bush  (Ky.)  451.  The 
purchaser  of  a  reversionary  interest,  at  least  from  an  expectant  heir,  is 
bound,  if  the  transaction  be  impeached  within  a  reasonable  time,  to  satisfy 
the  court  that  he  gave  the  market  value :  Lord  Aldborough  v.  Trye,  7  CI. 
&  Fin.  436  ;  Edwards  w.  Burt,  2  De  G.,  M.  &  G.  55.  The  mere  reference  to 
an  actuary,  to  determine  such  value,  without  regard  to  local  circumstances 
or  the  like,  is  not  enough  :  Edwards  v.  Burt,  ut  sup.  An  heir  in  tail,  who 
is  entitled  to  an  immediate  possession  of  one-half  the  land,  and  to  the  other 
half  on  the  death  of  a  tenant  by  the  curtesy,  is  not,  it  would  seem,  an  heir 
expectant,  within  the  rule  :  Davidson  v.  Little,  22  Penn.  St.  252.  On  the  sub- 
ject of  sales  by  reversioners  and  expectant  heirs,  see  Hill  on  Trustees,  4th 
Am.  ed.  238,  note. 


OF    RESCISSION    AND    CANCELLATION.  383 

vanced,  and  generally,  though  not  necessarily,  for  the 
costs  of  suit  as  on  a  common  decree  to  redeem,  (jo)  The 
soundness  of  this  equity,  when  applied  to  reversioners,  even 
assuming  it  to  be  well  founded  with  regard  to  expectant 
heirs,  seems  open  to  much  doubt.  For  a  reversioner  deals 
with  property  which  is  already  his  own,  although  its 
enjoyment  is  postponed.  There  is,  therefore,  no  fraud 
on  any  third  party ;  and  an  equity  to  set  aside  a  sale,  in 
the  absence  of  fraud  or  trust  as  between  the  immediate 
parties,  can  rest  on  little  more  than  mere  improvidence  in 
the  bargain,  (q)  It  may  be  doubted  too,  whether  the  rule 
has  been  productive  of  much  good,  even  to  the  parties 
whom  it  was  meant  to  protect,  and  whether  it  has  not 
prevented  them  from  selling  their  interest  at  the  fair 
value,  and  compelled  them  to  accept  less  favorable  terms 
on  account  of  the  attendant  risk. 

On  the  same  principle  a  bond  by  a  young  woman,  se- 
cretly given  to  a  man,  conditioned  to  pay  him  a  sum  of 
money  if  she  did  not  marry  him  on  her  father's  death,  he 
giving  a  bond  to  the  same  effect,  has  been  set  aside;  and 
chiefly  on  the  ground  that  it  was  a  fraud  on  the  parent,  who 
disapproved  of  the  marriage,  and  who  would  be  misled 
into  making  a  provision  for  his  daughter,  which,  had  he 
known  of  the  bond,  he  might  not  have  done,  or  might 
have  done  in  such  a  manner  as  would  have  prevented  the 
marriage,  {r) 

*The  third  ground  on  which  a  transaction  may  p^^.-.  J^Q-J 
be  rescinded,  though  not  vitiated  by  illegality  or 

{p)  Earl  of  Chesterfield  v.  Janssen,  1  Atk.  301 ;  2  Ves.  125  ;  Peacock  v. 
Evans,  16  Id.  512;  King  v.  Hamlet,  2  M.  &  K.  450-,  Z  CI.  &  Fin.  218; 
Newton  v.  Hunt,  5  Sim.  511 ;  Edwards  p.  Browne,  2  Coll.  100;  1  Sug.  Y. 
&  P.  444-464  ;  1  Story  on  Equity,  »■.  334-348. 

(g)  Wood  V.  Abrey,  3  Mad.  417  :  Davis  v.  Duke  of  Marlborough,  2  Sw. 
140,  note. 

(r)  Woodhouse  v.  Shepley,  2  Atk.  535  ;  Cock  v.  Richards,  10  Ves.  429. 


384  ADAMS's    DOCTRINE    OF    EQUITY. 

fraud  is  that  it  has  been  carried  on  in  ignorance^  or  mis- 
take of  facts  material  to  its  operation. 

The  most  direct  illustration  of  this  principle  occurs  in 
the  doctrine  of  the  common  law,  the  money  paid  volun- 
tarily under  a  mistake  of  fact  may  he  recovered  back  as 
money  had  and  received.^  On  the  same  principle,  acts 
which  have  been  done  voluntarily  under  a  like  mistake 
may  be  recalled  or  annulled  by  a  suit  in  equity;  as,  for  ex- 
ample, where  a  deed  of  covenant,  stipulating  that  any 
moneys  which  might  be  received  by  the  defendant  under 
certain  circumstances  should  be  held  for  the  use  of  the 
plaintiffs,  had  been  delivered  up  under  a  mistaken  belief 
that  no  such  moneys  had  been  received,  (s)  In  accordance 
with  the  same  doctrine  a  contract  may  be  set  aside  if  made 
for  a  consideration  which  is  really  non-existent,  but  which 
both  parties  mistakenly  suppose  to  exist.  Such,  for  ex- 
ample, would  be  the  case  where  the  subject  of  sale  is  a 
remainder  after  an  estate  tail;  and  the  estate  tail,  without 

{s)  East  India  Company  v.  Donald,  9  Ves.  275. 

^  A  party  relying  on  ignorance  must  show  that  he  could  not  have  ob- 
tained the  necessary  information  with  due  diligence  :  Wason  v.  Wareing, 
15  Bea.  151. 

^  The  court  will  open  settlements  made  by  mistake,  although  receipts  in 
full  have  passed  :  McCrae  v.  Hollis,  4  Dessaus.  122;  Kussell  v.  Church,  65 
Penn.  St.  9 ;  and  money  paid  by  mistake,  and  on  a  usurious  agreement 
above  the  legal  interest,  was  recovered  back  by  English  bill :  Ashbrook  v. 
Watkins,  3  Monr.  82.  Where  there  is  error  in  a  settlement,  and  notes  are 
given  in  consequence  of  such  error  or  mistake,  equity  will  relieve  :  Barnett 
V.  Barnett,  6  J.  J.  Marsh.  499.  But  see  Clarke  v.  Dutcher,  9  Cow.  674  ; 
Bispham  v.  Price,  15  How.  U.  S.  162.  On  the  subject  generally,  see  notes 
to  Stapilton  v.  Stapilton,  2  Lead.  Cas.  Eq.  684,  3d  Am.  ed. ;  Larrabee  v. 
Larrabee,  34  Maine  477  ;  Hoge  v.  Hoge,  1  Watts  216  ;  Steele  v.  White,  2 
Paige  478 ;  Currie  v.  Steele,  2  Sandf.  S.  C.  542 ;  Bradley  v.  Chase,  22 
Maine  524.  Equity  has  jurisdiction  to  cancel  a  patent  for  land  granted  by 
the  United  States  under  mistake  or  ignorance  :  United  States  v.  Stone,  2 
Wall.  S,  C.  525 ;  Hughes  v.  United  States,  4  Id.  232. 


OF    RESCISSION    AND    CANCELLATION.  385 

the   knowledge  of   either   party,    has    been   previously 
barred,  (if)  ^ 

The  most  ordinary  applications  for  this  class  of  relief 
occur  where  releases  or  compromises  have  been  made  af- 
fecting rights,  of  which  the  existence  was  unknown  or 
the  character  mistaken  by  the  party  executing  the  release 
or  compromise;  and  there  are  three  forms  in  which  such 
ignorance  or  mistake  may  exist,  viz. :  1.  Where  the  re- 
lease or  compromise  refers  to  other  matters,  and  the  facts 
originating  the  particular  right  are  unknown  to  the  parties, 
or  are  mistaken  by  them;  2.  Where  the  uncertainty 
either  of  the  facts  or  of  the  law  i&  present  to  the  parties' 
minds,  and  they  intend  to  compromise  their  rights ;  and 
3.  Where  the  facts  are  known,  but  the  law  is  mistaken. 

In  the  first  class  of  cases,  where  the  instrument  is 
executed,  not  by  the  way  of  releasing  or  compromising  a 
'•■"particular  right,  but  in  ignorance  or  mistake  as  r-^^  ^.q-, 
to  the  facts  which  originate  that  right,  such  in- 
strument would  be  set  aside  in  equity,  (m)^  There  ap- 
pears, however,  to  be  an  exception  in  the  case  of  family 
arrangements,  which  are  governed  by  a  special  equity  of 
their  own,  and  may  be  enforced,  if  honestly  made, 
although  they  have  not  been  meant  as  a  compromise  of 
doubts,  but  have  proceeded  on  an  error  of  all  parties, 

(<)  Hitchcock  V.  Giddings,  4  Price  135 ;  1  Y.  &  P.  389  ;  Colyer  v.  Clay, 
7  Bea.  188. 

[u)  Farewell  v.  Coker,  cited  2  Meriv.  353 ;  Nay  lor  v.  Winch,  1  S.  &  S. 
555,  562 ;  Pritt  v.  Clay,  6  Bear.  503. 

^  In  Cochrane  r.  Willis,  34  Beav.  359,  the  court  relieved  against  a  sale  of 
timber  to  a  remainderman  which  had  been  made  under  the  mistaken  im- 
pression, common  to  both  parties,  that  a  tenant  for  life  was  alive,  when, 
in  fact  he  was  dead,  and  the  remainderman  was  therefore  entitled  to  the 
timber. 

^  See  note  to  pp.  168,  169  ;  Broughton  v.  Hutt,  3  De  G.  &  J.  501. 
25 


386  ADAMS's    DOCTRINE    OF    EQUITY. 

originating  in  mistake  or  ignorance  of  facts  as  to  what 
their  rights  actually  are.(e') 

In  the  second  class  of  cases,  where  the  uncertainty 
either  of  the  facts  or  of  the  law  is  present  to  the  parties' 
minds  and  they  intend  to  compromise  their  rights,  what- 
ever they  may  be,  i.  e.,  knowing  the  facts,  to  compromise 
the  law,  or  being  doubtful  of  the  facts,  to  compromise 
both  fact  and  law,  there  is  no  reason  to  set  aside  the 
transaction ;  for  it  is  based  on  the  existence  of  a  doubt ; 
there  is  no  mistake  in  what  is  done,  and  the  mere  fact 
that  one  of  the  parties  was  in  error  as  to  the  amount  of 
benefit  which  he  relinquished,  cannot  create  an  equity,  (w)^ 

The  third  class  of  cases,  where  the  facts  are  known  but 
the  law  is  mistaken,  have  been  to  some  extent  the  subject 
of  conflicting  authorities.  The  rule  at  law  is  clear,  that 
"money  paid  by  a  man  with  full  knowledge  of  all  the 
circumstances,  or  with  the  means  of  such  knowledge  in 
his  hands,  cannot  be  recovered  back  again  on  account 
of  such  payment  having  been  made  in  ignorance  of  the 
hk'Vf"{xY     The  principle  ought  to  be  the  same  in  equity. 

(r)  Stockley  v.  Stockley,  1  Ves.  &  B.  23,  30;  Dunnage  v.  White,  1 
Swanst.  137 ;  Neale  v.  Neale,  1  K.  672 ;  Westby  v.  Westby,  1  Conn,  &  L, 
537  ;  Gordon  v.  Gordon,  3  Swanst,  400. 

[w)  Attwood  V.  ,  1  Russ.  353 ;  5  Id.  149  ;  Leonard  v.  Leonard,  2 

Ball.  &  B.  171 ;  Stewart  v.  Stewart,  6  CI.  &  F.  911. 

(a;)  Bilbier.  Lumley,  2  East  469. 

^  See  Ray  and  Thornton  v.  Bank  of  Kentucky,  3  B.  Monr.  510. 

^  See  note  to  p.  170.  See,  also,  the  case  of  Underwood  v.  Brockman,  4 
Dana  309  ;  and  vol.  23  of  the  American  Jurist,  pp.  143-371,  where  the 
authorities  are  collected  and  compared  upon  this  point.  Where  there  is  a 
mistake  all  round  as  to  the  legal  effect  of  a  marriage  settlement,  and  a 
family  arrangement  is  effected,  not  as  to  the  right  thus  mistaken,  but  as  to 
a  collateral  matter  arising  therefrom,  such  arrangement  will  be  set  aside : 
Lawton  v.  Campion,  18  Jurist  818  ;  23  L.  J.  Ch.  505 ;  48  Beav.  87. 

So  if  a  party,  in  ignorance  of  a  plain  and  settled  principle  of  law,  is  in- 
duced to  give  up  his  property,  that  ignorance  is  a  ground  for  equitable 


OF    RESCISSION    AND    CANCELLATION.  387 

The  authorities  which  appear  most  opposed  to  it  are  those 
of  Bingham  t?.  Bingham,  (y)  and  Lansdown  v.  Lansdown.(^) 
In  the  *first  case  the  defendant  had  sold  to  the  p^-.  qr.-! 
plaintiff  an  estate,  which  in  fact  belonged  to  him 
already,  but  which  both  parties  believed,  under  a  mistake 
of  law,  to  belong  to  the  defendant.  The  Master  of  the 
Rolls  decreed  repayment  of  the  purchase-money,  saying 
there  was  a  plain  mistake.  It  has  been  said  by  Lord  Cot- 
tenham,  that  if  it  were  necessary  to  consider  the  principle 
of  that  decree  it  might  not  be  easy  to  distinguish  the  case 
from  any  other  purchase  in  which  the  vendor  turns  out  to 
have  no  title.  In  both  there  is  a  mistake,  and  the  effect 
in  both  is  that  the  vendor  receives,  and  the  purchaser  pays 
money  without  the  intended  equivalent.  («)  In  the  second 
case  one  of  four  brothers  died,  his  next  brother  and  the 
son  of  his  elder  brother  had  a  controversy  which  was 
heir,  and  were  advised  by  the  village  schoolmaster  that 
the  former  had  the  right  because  lands  could  not  ascend. 
He  recommended,  them,  however,  to  take  further  advice, 
but  the  nephew  afterwards  told  him  that  he  would  agree 
to  share  the  land  with  his  uncle,  let  it  be  whose  right  it 
would,  and  thereby  prevent  all  disputes  and  lawsuits.  The 
land  was  accordingly  divided  and  a  conveyance  made. 

(y)  1  Yes.  Sr.  126.  («)  Mosley  364 ;  2  Jac.  &  W.  205. 

(a)  6  CI.  &  F.  968. 

relief.  But  if  the  question  be  one  which  is  in  any  way  doubtful,  and  the 
doubtfulness  of  that  question  is  made  the  basis  of  any  arrangement  or 
'agreement,  especially  a  family  one,  the  court  will  give  no  relief:  Stone  v. 
Godfrey,  18  Jur.  165,  affirmed  Id.  524 ;  5  De  G.,  M.  &  G.  76. 

A  compromise  effected  in  a  suit,  where  the  complainant  untruly  alleged 
himself  tenant  in  tail,  but  set  forth  documents  which  showed  him  only 
tenant  for  life,  will  not  be  set  aside  on  the  ground  of  mistake  arising  from 
such  erroneous  allegation:  Richardson  v.  Eyton,  2  De  G.,  M.  &  G.  79. 
See  also,  as  to  setting  aside  family  arrangements  on  mistake  of  law, 
Ashhurst  v.  Mill,  7  Hare  502,  affirmed  12  Jur.  1035. 


388  ADAMs's    DOCTRINE    OF    EQUITY. 

But  the  arrangement  was  afterwards  set  aside  at  the 
nephew's  suit,  the  Court  saying  that  the  maxim  ^Hgnoran- 
tia  Juris  neminem  excusat^''  meant  only  that  ignorance  can- 
not be  pleaded  in  excuse  of  crimes,  and  did  not  hold  in 
civil  cases.  Lord  Cottenham  has  observed  of  this  case 
that  it  was  a  very  strong  one  of  setting  aside  a  compro- 
mise, but  that  it  is  impossible  to  ascertain  the  real  facts, 
and  that  the  restriction  af  the  maxim  to  criminal  cases  is 
not  recognised  by  modern  decisions.  (Z»)  It  is  said,  too, 
that  if  a  party  acting  in  ignorance  of  a  plain  and  settled 
principle  of  law  is  induced  to  give  up  a  portion  of  his  un- 
disputable  property  to  another,  under  the  name  of  a  com- 
promise, he  shall  be  relieved  from  the  effect  of  his 
mistake. (c)^  Subject,  however,  to  any  exception  which 
may  exist  on  this  ground,  it  seems  now  to  be  clearly 
established  that  in  *equity  as  well  as  at  law,  a 
L  -I  mere  mistake  of  law,  where  there  is  no  fraud  or 
trust,  and  no  mistake  of  fact,  is  immaterial.  (^Z) 

The  remedy  which  the  Court  affords  on  a  void  trans- 
action is  the  replacement  of  the  parties  in  statu  quo?     If, 

(6)  Stewart  t>.  Stewart,  6  CI.  &  Fin.  968. 

(c)  Naylor  v.  Winch,.  1  S..  &  S.  555,  564 ;  see  also  Stockley  v.  Stockley, 
1  Ves.  &  B.  31  ;  Saunders  v.  Lord  Annesley,  2  Sch.  &  L.  73,  101. 

(d)  Cholmondeley  v.  Cliaton,  2  Meriv.  171, 233,  328  ;  Stewart  v.  Stewart, 
6  CI.  &.  F.  911 ;  Denys  V.  Shuckburgh,  4  Y.  &  C.  42 ;  1  Story  on  Equity, 
8.  116-132. 

^  Eq^uity  will  relieve  against  a  mistake  of  law  acted  upon  and  brought 
about  by  undue  influence :  Jordan  v.  Stevens,  51  Maine  78 ;  Freeman  v. 
Curtis,.  Id.  140. 

^  Brown  v^  Lamphea.?,  35  Verm.  252,  is  a  good  illustration  of  the  relief 
afiPorded.  In  that  case  the  complainant  had  conveyed  a  lot  to  the  de- 
fendant, intending  to  reserve  the  use  of  a  spring  therein  situated  by  which 
other  property  of^the  complainant  was  supplied  with  water ;  but,  owing 
to  a  mistake  of  the  scrivener,  the  reservation  was  not  made.  The  purchaser 
was,  at  the  time  of  the  conveyance,  ignorant  of  the  existence  of  the  spring, 
but  subsequently  discovered  it,  and  attempted  to  stop  the  vendor's  use 
thereof.    Upon  a  bill  filed  by  the  vendor,  it  was  held  that  the  mistake  was 


OF    RESCISSION    AND    CANCELLATION.  389 

for  example,  a  bill  be  filed  by  the  obligor  of  a  usurious 
bond  to  be  relieved  against  it,  the  Court,  in  a  proper 
case  will  cancel  the  bond,  but  only  on  his  refunding  the 
money  advanced.  The  equity  is  to  have  the  entire 
transaction  rescinded,  and  if  the  obligor  will  have  equity, 
he  must  also  do  equity.^  The  Court  will  remit  both  par- 
ties to  their  original  positions,  and  will  not  relieve  the 
obligor  from  his  liability,  leaving  him  the  fruits  of  the 
transaction  of  which  he  complains,  (e)^  If,  again,  a  decree 
be  asked  for  the  cancellation  of  an  invalid  annuity  deed, 
it  must  be  on  the  terms  of  having  an  account  taken  of  all 
receipts  and  payments  on  either  side,  and  payment  made 
of  the  balance. (/)  It  has  been  already  stated,  in  ac- 
cordance with  the  same  principle,  that  a  purchase  from  an 
expectant  heir  or  reversioner  will  not  be  set  aside  abso- 
lutely, but  will  be  ordered  to  stand  as  a  security  for  the 
amount  paid.  And  therefore,  if  the  party  complaining 
has  done  any  act,  when  relieved  from  his  necessities,  by 
which  the  rights  of  the  other  are  affected,  so  that  he  can- 
not be  replaced  in  statu  quo,  he  cannot  afterwards  repu- 
diate the  contract.  (^) 

(c)  Hanson  v.  Keating,  4  Hare  1-6. 

(y)  Byne  v.  Vivian,  5  Ves.  604. 

{g)  King  V.  Hamlet,  2  M.  &  K.  456  ;  3  CI.  &  Fin.  218. 

one  against  which  equity  would  relieve,  and  that  the  defendant  must  either 
execute  a  conveyance  of  the  right  to  the  spring,  or  reconvey  the  lot  upon 
repayment  of  his  purchase-money. 

'  Daniell  v.  Mitchell,  1  Story  173;  Harding  ».  Handy,  11  Wheat.  103; 
Dower  v.  Fortner,  5  Port.  9  ;  Brogden  v.  Walker,  2  Har.  &  Johns.  2S5 : 
Waters  v.  Lemon,  4  Hamm.  229;  Lowry  t*.  Cox,  2  Dana  469;  White  v. 
Trotter,  14  Sm.  &  Marsh.  30;  Bruen  v.  Hone,  2  Barb.  S.  C.  586;  Dog- 
gett  V.  Emerson,  1  Wood.  &  M.  195  ;  ShaeflFer  r.  Slade,  7  Blackf.  128  ;  Mill 
V.  Hill,  3  H.  Lds.  Cas.  828 ;  Johnson  v.  Walker,  25  Ark.  196.  This  obli- 
gation of  "  doing  equity"  in  such  cases,  does  not  extend  to  transactions 
unconnected  with  the  one  in  suit :  Wilkinson  v.  Fowkes,  9  Hare  592. 

*  See  Skilbeck  v.  Hilton,  L.  R.  2  Eq.  587  ;  Stewart  v.  Ludwick,  29  Ind. 
230. 


390  ADAMs's    DOCTRINE    OF    EQUITY. 

In  addition  to  the  jurisdiction  for  setting  aside  con- 
tracts on  the  ground  of  a  mistake  by  the  parties,  there  is 
a  jurisdiction  to  set  aside  awards  on  the  ground  of  mis- 
carriage in  the  arbitrators,  where  the  fact  of  such  miscar- 
riage does  not  appear  on  the  award,  and  cannot,  therefore, 
be  made  a  ground  for  impeaching  it  at  law. 

A  dispute  may  be  referred  to  arbitration  in  three  ways.^ 
1.  The  reference  may  be  by  mere  agreement  of  the  par- 
Pi  Q21  ^^^^'  unaided  by  the  direction  *of  any  Court;  2. 
It  may  be  by  a  rule  of  Court,  made  by  consent 
in  an  action  actually  depending;  and  8.  It  may  be  by 
agreement  to  refer  existing  disputes,  which  might  be  the 
subject  of  a  personal  action  or  suit  in  equity,  but  Avith  re- 
spect to  which  no  proceedings  are  actually  depending. 
In  those  cases  where  the  submission  is  by  mere  agree- 
ment, it  is  revocable  by  either  party  until  the  award  is 
made  at  the  peril  of  an  action  for  breach  of  contract ;  but 
where  the  agreement  has  been  made  a  rule  of  Court,, 
under  the  provisions  of  9  and  10  Wm.  3,  c.  15,  it  is  now 
by  statute  declared  irrevocaible,  unless  by  leave  of  the 
Court  or  one  of  its  judges.  (7^) 

After  the  award  has  been  made,  the  power  of  revoca- 
tion is  at  an  end;^  and  the  award  may  be  enforced  by 
either  party,  either  by  action  on  the*  award  or  on  the  con- 
tract to  refer,  («')  or  in  a  proper  case  by  suit  in  equity  for 
specific  performance,  (A-)^  or,  if  it  has  been  made  a  rule  of 
Court,  by  an  attachment  for  contempt. 

(A)  3  &  4  Wm.  4,  c.  42,  s.  39. 

(i)  Warburton  v.  Storr,  4  B.  &  C.  103  (10  E.  C.  L.  R.) 

{k)  Hall  V.  Hardy,  3  P.  Wms.  187;  Wood  v.  Griffith,  1  Sw.  43-54. 

^  The  subject  of  arbitration  is  regulated  in  most  of  the  states,  as  in 
Pennsylvania,  by  special  statute. 

^  See  Tobey  v.  County  of  Bristol,  3  Story  800. 

»  Smith  V.  Smith,  4  Rand.  95 ;  McNear  v.  Bailey,  18  Maine  251  ;  Paw- 
ling V.  Jackman,  6  Litt.  1 ;  McNeil  v.  Magee,  5  Mason  244 ;  Jones  v.  Bos- 


OF    RESCISSION    AND    CANCELLATION.  391 

In  ouder  to  resist  the  enforcement  of  the  award,  it  is 
necessary  that  its  validity  be  impeached.  It  is  not  suffi- 
cient for  this  purpose  to  contend,  or  even  to  prove,  that 
it  is  unreasonable  or  unjust ;  for  the  reason  and  justice 
of  the  case  are  the  very  points  referred  to  the  arbitrators, 
and  on  which  their  decision  must  be  conclusive.  But  if 
any  fraud  or  partiality  be  shown,  it  will  palpably  vitiate 
the  award.^  And  even  in  the  absence  of  actual  miscon- 
duct, the  same  result  may  follow,  if  the  arbitrators  have 
failed  in  performance  of  their  duty ;  e.  g.,  if  they  have 
not  declared  their  decision  with  certainty ;  if  their  award 
be  not  final  on  all  points  referred ;  if  it  exceed  the  autho- 
rity given ;  if  they  have  acted  on  a  mistake  of  law,  when 
the  law  itself  is  not  referred,  but  the  reference  was  to 
decide  on  facts  according  to  law  \{iy  or  if  they  have  acted 

(Z)  Young  r.  Walter,  9  Ves.  364;  Steff  ».  Andrews,  2  Mad.  6. 

ton  Mill  Corp.,  4  Pick.  507  ;  Cook  v.  Vick,  2  How.  (Miss.)  882  ;  Kirksey  v. 
Fike,  27  Ala.  383 :  Wood  ».  Shepherd,  2  Patt.  &  II.  452 ;  Story  v.  Nor- 
wich &  Worcester,  24  Conn.  94.  An  agreement  to  refer  will  not,  however, 
be  specifically  enforced :  Conner  ».  Drake,  1  Ohio  N.  S.  166. 

^  See  Schenck's  Admr.  v.  Cuttrell,  1  Green  Ch.  297;  Herrickr.  Blair,  1 
John.  Ch.  101  ;  Shermer  ».  Beale,  1  Wash.  11  ;  Pleasants  et  al.  v.  Ross,  1 
Wash.  156;  Van  Cortlandt  w.  Underhill,  17  John.  405;  Head  v.  Muir,  3 
Rand.  122;  Hardeman  v.  Burge,  10  Yerg.  202 ;  Bispham  v.  Price,  15  How. 
U.  S.  162;  Tracy  v.  Herriek,  3  Foster  381. 

^  A  mistake  in  law  must  be  a  plain  one,  and  upon  a  material  point 
aflfecting  the  case  :  Schenck's  Admr.  v.  Cuttrell,  ubi  supra.  So  an  award 
will  be  set  aside,  when  it  is  not  final  and  is  indefinite  :  Ilattier  v.  Etinaud, 
2  Dessaus.  570  ;  and  also  where  it  exceeds  the  submission,  the  excess  will 
either  be  set  aside,  or  the  award  in  toto  :  Taylor's  Admr.  v.  Nicolson,  1 
Hen.  &  Munf.  66 ;  McDaniell  v.  Bell,  3  Heywood  264 ;  Gibson  et  al.  v. 
Broadfoot,  3  Dessaus.  11.  As  to  where  the  decision  is  given  intentionally 
against  the  law,  see  West  Jersey  R.  R.  v.  Thomas,  21  N.  J.  £q.  205. 

A  mere  mistake  of  judgment  in  arbitrators,  is  not  sufficient  evidence  of 
improper  conduct  on  their  part,  to  justify  the  setting  aside  of  their  award 
in  a  Court  of  Chancery :  Campbell  v.  Western,  3  Paige  Ch.  124  ;  Roloson 
r.  Carson,  8  Md.  208  ;  Bridgman  v.  Bridgman,  23  Mo.  272.     When,  how 


392  ADAMS's    DOCTRINE     OF    EQUITY. 

on  a  mistake  as  to  a  material  fact,  admitted  by  themselves 
to  have  been  made  and  to  have  influenced  their  judgment.^ 

ever,  the  arbitrators  heard  evidence,  without  giving  the  opposite  party  an 
opportunity  to  cross-examine  or  of  being  heard,  the  award  was  set  aside  : 
Shinnie  v.  Coil,  1  McC.  Ch.  478.  So,  also,  when  they  refused  to  hear  evi- 
dence pertinent  and  material  to  the  controversy  :  Van  Cortlandt  v.  Under- 
bill, 17  John.  405 ;  see  Severance  v.  Hilton,  32  N.  H.  289 ;  McGuire  v. 
O'Halloran,  Hill  &  Denio  85. 

'  And  where  the  award  does  not  carry  out  the  intention  of  the  arbitra- 
tors, chancery  will  rectify  it :  Williams  v.  Warren,  21  111.  541.  The  more 
recent  authorities  in  England,  have  thrown  very  considerable  doubt  upon 
the  question  of  the  admissibility  of  evidence  of  arbitrators,  to  show  that 
they  made  their  award  under  a  mistake  as  to  some  material  fact.  In  the 
case  of  Hall  and  Hinds,  2  M.  &  G.  847,  evidence  of  this  nature  was  ad- 
mitted ;  but  this  decision  was  severely  criticised  in  Phillips  i".  Evans,  12 
M.  &  W.  309,  and  though  not  overruled  directly,  yet  it  was  considered  as 
hardly  to  be  supported.  So  in  Re  Stroud,  8  C.  B.  501,  the  question  was 
considered  very  doubtful.  In  Hutchinson  v.  Shepperton,  13  Q.  B.  955, 
however,  the  admission  of  the  evidence  was  held  to  be  a  matter  of  discre- 
tion, rarely  to  be  exercised,  but  not  to  be  refused  in  a  case  of  gross  in- 
justice, as  in  that,  which  was  one  of  account,  where  the  parties  agreed 
upon  the  amount  due,  on  a  particular  claim,  but  the  arbitrator  misunder- 
standing them,  and  supposing  that  it  was  no  longer  a  matter  of  difference, 
omitted  it  from  his  award.  It  seems,  however,  clear  on  the  English  authori- 
ties that  no  mistake  upon  the  evidence  itself,  however  gross,  will  be  ground 
for  relief.  In  the  United  States,  there  has  been  a  number  of  decisions  on 
the  subject,  from  which  no  certain  rule  can  be  drawn,  except  that  such 
evidence  would  not  be  received  except  in  peculiar  cases.  Thus  in  Boston 
Water  Power  Co.  v.  Gray,  6  Metcalf  169,  it  was  held  that  mistake  as  to 
conclusion  of  fact,  or  of  scientific  principles  applied  in  an  award,  could 
not  be  cured  by  the  after  admission  of  the  arbitrators,  but  it  was  said  that 
it  was  different  where  the  mistake  was  in  some  preliminary  fact,  inad- 
vertently assumed  and  believed,  as  in  the  use  of  false  measures  or  weights ; 
see  Roloson  v.  Carson,  8  Md.  208.  And  in  Eaton  c.  Eaton,  8  Ired.  Eq.  102, 
the  rule  of  the  inadmissibility  of  such  evidence,  was  stated,  on  the  authority 
of  Phillips  V.  Evans,  to  be  without  exception.  Ruffin,  C.  J.,  dissented, 
however,  in  a  forcible  opinion  ;  and  certainly  it  is  not  difficult  to  imagine 
cases  in  which  such  an  extreme  doctrine  would  be  productive  of  most  ab- 
surd injustice.  See  further.  Bell  v.  Price,  2  Zabriskie  591  ;  Bigelow  v. 
Maynard,  4  Cush.  316  ;  Hartshornew.  Cuttrell,  1  Green.  Ch.  297  ;  Bumpass 
V,  Webb,  4  Port.  (Ala.)  71.  The  rules  on  this  subject  are  the  same  in  equity 
as  law.     See  Russell  on  Arbitrators  301,  &c. ;  Eaton  v.  Eaton,  ut  supr. 


OF    RESCISSION    AND    CANCELLATION.  393 

But  unless  *tliey  voluntarily  make  the  admission,    r*-]  non 
they  cannot  be  compelled  to  disclose  the  grounds 
of  their  judgment,  (m) 

If  any  of  these  objections  appear  on  the  face  of  the 
award,  they  invalidate  it,  and  preclude  its  enforcement 
at  law ;  and  if  there  be  actual  fraud,  it  may  be  pleaded 
in  avoidance  at  law.  If  there  be  mere  miscarriage,  not 
apparent  on  the  face  of  the  award,  it  cannot  be  pleaded 
in  avoidance  at  law,  but  must  be  made  available  by  an 
independent  application  to  set  aside  the  award,  (w)  And 
where  the  submission  rests  on  mere  agreement,  and  is 
not  a  rule  of  any  Court,  the  jurisdiction  for  this  purpose 
is  exclusive  in  equity,  (o)  If  the  submission  is  by  rule  at 
nisi  prius,  the  jurisdiction  is  concurrent  in  law  and  equity. 
For  the  Court  of  law  which  directed  the  reference  retains 
a  superintending  power,  and  the  Court  of  Chancery  has 
its  ancient  jurisdiction  over  the  parties  to  the  action,  of 
which  the  reference  is  merely  a  modified  continuance,  (jt?) 
In  the  third  class,  where  a  submission  by  agreement,  not 
made  in  any  cause,  has  been  made  a  rule^  of  Court  under 
the  statute,  the  jurisdiction  is  exclusive  in  the  Court  of 
which  the  submission  has  been  made  a  i-ule.  For  it  is 
expressly  enacted,  that  the  Court  of  which  it  is  made  a 
rule  may  set  aside  the  award,  if  procured  by  corruption 
or  any  undue  means  (which  has  been  held  to  include  mis- 
take), if  complaint  be  made  before  the  last  day  of  the 
next  term  aft^r  its  publication,  that  no  other  Court,  either 
of  law  or  of  equity,  shall  interfere. 

(m)  Knox  v.  Simmons,  1  Ves.  J.  369  ;  Anon.,  3  Atk.  644. 
(n)  Braddick  v.  Thompson,  8  East  344;  Pedley  v.  Goddard,  7  T.  R.  73. 
(o)  Goodman  v.  Sayers,  2  J.  &  W.  249. 

ip)  Nichols  ».  Chalie,  14  Ves.  265;  [Elliott  r.  Adams,  8  Black.  103; 
bnt  see  Waples  v.  Waples,  1  Harrinor.  392.] 

^  Or  has  been  agreed  to  be  made  such  :  Heming  v.  Swinnerton,  1  Coop. 
C.  C.  386 ;  Nichols  v.  Roe,  3  M.  &  K.  431. 


394        ADAMS's  DOCTRINE  OF  EQUITY. 


[*194]  *CHAPTER    VI. 

OF   INJUNCTION   AGAINST   PROCEEDINGS   AT   LAW BILLS   OF 

PEACE INTERPLEADER INJUNCTION   AGAINST    TORT. 

It  has  been  already  observed,  in  treating  of  the  equity 
for  rescission,  that  it  is  effectuated,  not  only  by  cancella- 
tion of  an  instrument  or  by  reconveyance  of  property,  but 
by  injunction  against  suing  at  law  on  a  vitiated  contract, 
or  against  taking  other  steps  to  complete  an  incipient 
wrong.  The  right  to  injunctive  relief  is  not  confined  to 
the  equity  for  rescission,  but  extends  to  all  cases  where 
civil  proceedings  have  been  commenced  before  the  ordi- 
nary tribunals  in  respect  of  a  dispute  which  involves  an 
equitable  element,  or  where  an  act  is  commenced  or 
threatened,  by  which  an  equity  would  be  infringed.^  The 
restraint  may  be  imposed  either  by  a  final  decree,  forbid- 
ding-the  act  in  perpetuum  on  establishment  of  the  adverse 
right,  or  by  interlocutory  writ,  forbidding  it  pro  tempore 
whilst  the  right  is  in  litigation. 

The  injunction  against  proceedings  in  another  Court  is 
an  auxiliary  decree  or  writ,  made  or  issued  to  restrain 
parties  from  litigation  before  the  ordinary  tribunals  where 

^  The  common  injunction  no  longer  exists  in  New  York,  the  Courts  of 
that  state  being  competent  to  administer  relief  on  equitable  as  well  as 
legal  grounds  :  Grant  v.  Quick,  5  Sand.  S.  C.  G12,  In  Wisconsin  injunc- 
tions have  been  abolished,  and  relief  is  afforded  under  express  statutory 
provisions:  Trustees  v.  Hoessli,  13  Wis.  348. 


OF    INJUNCTION,     ETC.  395 

equitable  elements  are  involved  in  the  dispute ;  as,  for 
example,  to  restrain  an  ejectment  by  a  trustee  against  his 
cestui  que  trust,  or  by  a  vendor,  bound  to  specific  perform- 
ance, against  the  purchaser.^     The  ground  for  imposing 

*  The  subject  of  the  power  of  courts  of  equity  to  enjoin  proceedings  at 
law  will  be  found  discussed  in  the  notes  to  the  Earl  of  Oxford's  Case,  2 
Lead  Cas.  Eq.  504,  As  a  general  rule,  whenever,  through  fraud,  mistake, 
accident,  or  want  of  discovery,  one  of  the  parties  in  a  suit  at  law  obtains, 
or  is  likely  to  obtain,  an  unfair  advantage  over  the  other,  so  as  to  make 
the  legal  proceedings  an  instrument  of  injustice,  a  court  of  equity  will  in- 
terfere by  injunction:  Story's  Equity,  I  885;  Daniel's  Chan.  Prac.  1725; 
and  see  How  v.  Mortell,  28  111.  478 ;  Pierson  v.  Ryerson,  1  McCart.  181 ; 
Ferguson  v.  Fisk,  28  Conn.  511 ;  Weed  v.  Grant,  30  Id.  74;  Dehon  v.  Fos- 
ter, 4  Allen  545 ;  Davis  v.  Hoopes,  33  Miss.  173  ;  Hine  v.  Handy,  1  Johns. 
Ch.  6 ;  Atlantic  DeLaine  Co.  v.  Tredick,  5  R.  I.  171 ;  Dale  v.  Roosevelt,  5 
Johns.  Ch.  174  ;  Matter  of  Merritt,  5  Paige  125  ;  Miller  v.  McCan,  7  Paige 
457 ;  DealaBeld  v.  State  of  Illinois,  26  Wend.  192 ;  Beaty  v.  Beaty,  2 
Johns.  Ch.  430 ;  Denton  v.  Graves,  Hopkins  306 ;  Bulows  v.  Committee  of 
O'Neall,  4  Dessaus.  394 ;  Vennum  v.  Davis,  35  111.  568. 

But  equity  will  not  interfere  to  restrain  criminal  proceedings :  Holder- 
staffe  V.  Saunders,  6  Mod.  16 ;  The  Mayor,  &c.,  of  York  v.  Pilkington,  2 
Atk.  302 ;  Montague  v.  Dudman,  2  Yesey  396 ;  see  Turner  v.  Turner,  15 
Jur.  218.  Xor  where  the  ground  for  relief  is  equally  available  at  law : 
Harrison  v.  Nettleship,  2  Myl.  &  K.  423 ;  Philhower  v.  Todd,  3  Stockton 
54.  In  England  equitable  pleas  and  replications  may  be  made  use  of  at 
law  under  the  Procedure  Act  of  1854 ;  but  as  this  statute  has  been  nar- 
rowly construed,  a  party  has  still,  in  many  instances,  to  come  into  Chan- 
cery for  relief:  see  Gompertz  v.  Pooley,  4  Drew.  448  ;  Waterlow  v.  Bacon, 
L.  R.  2  Eq.  514.  A  court  of  equity  will  not  interfere  to  prevent  a  party 
from  applying  to  Parliament  for  relief  by  special  statute  :  Heathcote  v. 
The  North  Staffordshire  R.  R.  Co.,  2  Macn.  &  G.  100 ;  or  to  the  legisla- 
ture of  a  foreign  country  :  Bill  v.  The  Sierra  Nevada  Co.,  1  De  G.,  F.  &  J. 
177.  For  further  instances  of  the  Court's  refusal,  on  the  other  hand,  to 
grant  an  injunction  to  restrain  proceedings  before  judgment,  see  Peck  r. 
Woodbridge,  3  Day  508 ;  Mitchell  v.  Oakley,  7  Paige  68 ;  Perrine  v. 
Striker,  Id.  598  ;  Tone  v.  Brace,  8  Id.  597  ;  Glenn  v.  Fowler,  8  Gill*&  J. 
340;  Caldwell  r.  Williams,  1  Bailey's  Ch.  175;  Mactier  v.  Lawrence,  7 
Johns.  Ch.  206  ;  Chadoin  v.  Magee,  20  Texas  476.  Equity  will  sometimes 
leave  the  parties  to  their  mere  legal  rights :  Bankhart  v.  Houghton^  27 
Beav.  425. 

No  injunction  to  stay  proceedings  at  law  can  be  had  against  the  United 


396  ADAMS's    DOCTRINE    OF    EQUITY. 

this  restraint  is,  that  the  ordinary  tribunals  cannot  adju- 
dicate on  an  equity  ;  and  they  would  decide,  therefore,  on 
a  part  only,  and  not  on  the  whole  of  the  dispute.  The 
r*1  Q  ^1  *®^istencej  however,  of  such  an  equitable  element, 
or  the  pendency  of  a  suit  respecting  it,  is  not 
recognised  by  those  tribunals  as  a  bar  to  their  own  pro- 
cedure ;  but  the  bar  must  be  made  effectual  by  an  injunc- 
tion out  of  Chancery,  which  does  not  operate  as  a  prohibi- 
tion to  the  ordinary  Court,  but  restrains  the  plaintiff 
personally  from  further  steps.  («) 

The  proceedings  to  which  this  injunction  most  commonly 
applies  are  those  before  the  common  law  Courts.  The 
interlocutory  writ  is  attainable  as  of  course  within  a  very 
limited  period  after  the  commencement  of  a  suit,  so  as  to 
restrain  proceedings  at  law,  until  the  defendant  in  equity 
has  answered  the  bill,  and  has  thus  enabled  the  Court  to 
judge  of  their  propriety.  In  order  to  prevent  its  issue, 
he  must  appear  within  four  days  after  the  suhpoena  has 
been  served,  and  answer  within  eight  days  after  his  ap- 
pearance.    This  writ  is  termed  the  common  injunction.^ 

(o)  Sheffield  v.  Duchess  of  Buckinghamshire,  1  Atk.  624 ;  Lord  Portar- 
lington  ».  Soulby,  3  Myl.  &  K.  104,  107. 

States :  Hill  v.  The  United  States,  9  How.  386.  In  the  well-known  and 
important  case  of  The  State  of  Mississippi  v.  Johnson,  President,  4  Wal- 
lace S.  C.  475,  the  Court  refused  to  allow  a  bill  to  be  filed,  the  object  of 
which  was  to  enjoin  the  President  of  the  United  States  from  carrying  out 
the  provisions  of  the  Acts  of  Congress  of  March  2d  and  23d,  1867,  com- 
monly known  as  the  Reconstruction  Acts,  This  decision  was  made  upon 
the  ground  that  a  court  of  equity  had  no  right  to  interfere  with  the  exer- 
cise of  executive  discretion. 

*  ^he  distinction  between  common  and  special  injunctions  has  been 
abolished  in  England  by  statute  15  &  16  Vict.  c.  85,  In  the  United  States, 
as  a  general  rule,  the  common  injunction  does  not  exist,  but  all  injunc- 
tions are  granted  on  the  merits.  See  Buckley  v.  Corse,  Saxton  504  ;  HofiP- 
man's  Ch.  Prac.  78;  Perry  v.  Parker,  1  Wood,  &  M,  280;  Daniel's  Ch. 
Prac.  1716,     In  Pennsylvania,  injunctions  may  be  obtained  at  once,  on 


OF    INJUNCTION,    ETC.  397 

The  extent  of  its  operation  depends  on  the  stage  which 
the  proceedings  at  law  have  reached.  If  it  be  obtained 
Jaefore  a  declaration  is  delivered,  it  stays  all  the  proceed- 
ings at  law.  If  afterwards,  it  only  restrains  execution, 
and  leaves  the  plaintiff  at  liberty  to  proceed  to  judgment. 
But  if  the  plaintiff  in  equity  make  affidavit  that  he  be- 
lieves the  answer  will  afford  discovery  material  to  his 
defence  at  law,  he  may  obtain  by  another  motion  an  order 
extending  it  to  stay  trial.  If  the  defendant,  is  diligent 
enough  to  prevent  the  common  injunction  from  issuing, 
by  filing  a  sufl&cient  answer  within  the  time  allowed,  the 
only  way  to  obtain  the  injunction  is  by  moving  specially 
on  the  admissions  in  the  answer.  If  tjie  proceedings  at 
law  have  been  commenced  under  such  circumstances  that 
the  plaintiff  in  equity  has  no  opportunity  of  obtaining 
the  common  injunction,  a  special  injunction  may  some- 
times be  obtained  on  affidavit  under  very  special  circum- 
stances before  answer.  (J) 

*As  soon  as  the  defendant  has  put  in  a  full    r^-iqe-i 
answer,  he  may  move  to  dissolve  the  injunction.^ 

(6)  Drummond  v.  Pigou,  2  M.  &  K.  168 ;  Bailey  v.  Weston,  7  Sim.  666. 


security  being  given,  without  notice  to  the  opposite  party  ;  but  whencTer 
80  granted,  it  shall  be  taken  to  be  dissolved,  if  the  motion  be  not  argued 
within  five  days  after  the  notice  is  given,  unless  otherwise  specially 
ordered.     See  the  75th  of  the  Rules  of  Equity  Practice  of  that  state. 

^  The  defendant  may  move  to  dissolve  an  injunction  for  want  of  equity 
appearing  on  the  face  of  the  bill ;  and  such  a  motion  is  like  a  demurrer : 
Titus  V.  Mabee,  2')  111.  259.  It  is  an  almost  universal  practice  to  dissolve 
the  injunction,  where  the  answer  fully  denies  all  the  circumstances  upon 
which  the  equity  of  the  bill  is  founded ;  and  likewise  to  refuse  the  writ,  if 
application  is  made  after  the  coming  in  of  such  answer :  Uoffman  v. 
Livingstone,  1  Johns.  Ch.  211;  McFarland  v.  McDowell,  1  Car.  Law  Rep. 
110;  Cowles  V.  Carter,  4  Ired.  Eq.  105  ;  Livingston  v.  Livingston,  4  Paige 
Ch.  Ill ;  Gibson  v.  Tilton,  1  Bland.  Ch.  355 ;  Perkins  v.  Ilallowell,  5  Ired. 
Eq.  24  ;  Williams  v.  Berry,  3  Stew.  &  Port.  284  ;  Green  v.  Phillips,  6  Ired. 
Eq.  223;  Wakemaa  v.  Gillespy,  5  Paige  112;  Stoutenburgh  r.  Peck,  3 


398  ADAMS's    DOCTRINE    OF    EQUITY. 

And  it  is  then  a  question  for  the  discretion  of  the  Court, 
whether  on  the  facts  disclosed  by  the  answer,  or  as  it  is 

Green  Ch.  446 ;  Leigh  v.  Clark,  3  Stockt.  113 ;  Hollister  v.  Barkley,  9  N. 
H.  230 ;  Eldred  v.  Camp,  Harring  Ch.  163  ;  Freeman  v.  Elmendorf,  3 
Ilalst.  Ch.  655  ;  Adams  v,  Whiteford,  9  Gill  501  ;  Dorsey  v.  The  Ilagers- 
town  Bank,  17  Md.  408  ;  West  t\  Rouse,  14  Ga.  715  ;  Mahone  v.  Central 
Bank,  17  Id,  111 ;  Greenin  v.  Hoey,  1  Stockt.  (N.  J.)  137  ;  Kohler  v.  Los 
Angeles,  39  Cal.  510 ;  Van  Houten  v.  First  Ref.  Dutch  Church,  2  Green 
(N.  J.)  126 ;  Manhattan  Gas  Co.  v.  Barker,  7  Rob.  (N.  Y.)  523.  For  the 
practice  in  New  York,  see  Brewster  v,  Hodges,  1  Duer  609 ;  Loomis  v. 
Brown,  16  Barb.  325.  But  there  is  no  inflexible  rule  to  this  efl"ect ;  the 
granting  and  continuing  an  inj  unction  must  always  rest  in  the  sound  dis- 
cretion of  the  court,  to  be  governed  by  the  nature  of  the  case  :  Roberts  v. 
Anderson,  2  Johns.  Ch,  204 ;  Poor  v.  Carlton,  3  Sumn.  70 ;  Bank  of  Mon- 
roe V.  Schermerhorn,  1  Clark  303  ;  Canton  Co.  v.  Northern,  &c.,  R.  R.,  21 
Md.  383;  Hine  «.  Stephens,  33  Conn.  497.  The  injunction  will  not  be 
dissolved  when  the  answers  of  the  parties  most  interested  admit  the  alle- 
gations in  the  bill ;  although  the  party  restrained  denies  them  :  Zabriskie 
V.  Vreeland,  1  Beas.  179.  The  answer  of  a  corporation  must  be  verified 
by  the  oath  of  some  one  of  its  officers:  Bouldin  v.  The  Mayor  of  Baltimore, 
15  Md.  21. 

Where  the  defendant  in  his  answer  admit,  or  does  not  deny  the  equity 
of  the  bill,  but  sets  up  new  matter  of  defence,  on  which  he  relies,  the  in- 
junction will  be  continued  to  the  hearing :  Minturn  v.  Seymour,  4  Johns. 
Ch.  497  ;  Lindsay  v.  Etheridge,  1  Dev.  &  Bat.  Eq.  38  ;  Hutchins  v.  Hope, 

12  Gill  &  J.  244  ;  Lyrely  v.  Wheeler,  3  Ired.  Eq.  170  ;  Nelson  v.  Owen,  Id. 
175;  Drury  v.  Roberts,  2  Md.  Ch.  157;  Rembert  v.  Brown,  17  Ala.  667; 
Wilson.u.  Mace,  2  Jones'  Eq.  5  ;  State  v.  Northern  Central  Railway  Co., 
18  Md.  193  ;  West  Jersey  R.  R.  v.  Thomas,  21  N.  J.  Eq.  205. 

It  is  a  general  rule,  that  an  injunction  will  not  be  dissolved,  on  answer, 
until  the  answers  of  all  the  defendants  are  put  in.     See  Mooney  v.  Jordan, 

13  Beav.  229 ;  Bait.  &  Ohio  R.  R.  v.  Wheeling,  13  Gratt.  40 ;  School  Com- 
missioners V.  Putnam,  44  Ala.  506  ;  Garrett  v.  Lynch,  Id.  683.  But  there 
are  many  exceptions  :  e.  g.,  it  will  be  considered  unnecessary,  if  those  who 
have  not  answered  are  merely  formal  parties :  Higgins  v.  Woodward, 
Hopkins'  Ch.  342.  So  may  it  be  dissolved  upon  the  answer  of  one  or 
more  defendants  within  whose  knowledge  the  facts  charged  especially  or 
exclusively  lie,  although  other  defendants  have  not  answered:  Dunlap  v. 
Clements,  7  Ala.  539 ;  Coleman  v.  Gage,  1  Clarke  295  ;  Ashe  v.  Hale,  5 
Ired.  Eq.  55.  So  also  where  that  defendant  against  whom  the  gravamen 
of  the  charge  rests,  has  fully  answered  ;  Depeyster  v.  Graves,  2  Johns.  Ch. 
148  ;  Noble  v.  Wilson,  1  Paige  164 ;  Stoutenburgh  v.  Peck,  3  Green  Ch. 


OF    INJUNCTION,     ETC.  399 

technically  termed,  on  the  equity  confessed,  the  injunc- 
tion shall  be  at  once  dissolved,  or  whether  it  shall  be  con- 
tinued to  the  hearing.  The  general  principle  of  decision 
is,  that  if  the  answer  shows  the  existence  of  an  equitable 
question,  such  question  shall  be  preserved  intact  until  the 
hearing.  But  the  particular  mode  of  doing  this  is  matter 
of  discretion. 

If  the  plaintiff  is  willing  to  admit  the  demand  at  law, 
and  to  give  judgment  in  the  action,  but  is  unwilling  to  pay 
money  to  the  defendant,  which,  if  once  paid,  it  might  be 

446  ;  Vliet  v.  Lowmason,  1  Id.  404  ;  Price  ».  Clevenger,  2  Id.  207.  See 
also  Goodwin  v.  State  Bank,  4  Dessaus.  389.  And  this,  too,  where  all  the 
defendants  are  implicated  in  the  same  charge,  and  the  answer  of  all  can 
and  ought  to  come  in,  but  the  plaintiff  has  not  taken  the  requisite  steps, 
with  reasonable  diligence,  to  expedite  his  cause :  Depejster  v.  Graves,  ubi 
supra.  See  also  Bond  v.  Hendricks,  1  A.  K.  Marsh.  594.  The  injunc- 
tion cannot  be  dissolved,  if  the  answer  be  evasive  and  apparently  deficient 
in  frankness,  candor,  or  precision :  Little  v.  Marsh,  2  Ired.  Eq.  18 ;  Wil- 
liams f.  Hall,  1  Bland  Ch.  193  ;  Thomas  v.  Hall,  24  Ga.  481.  Nor  if  it  be 
contradictory :  Tong  v.  Oliver,  Id.  199.  Xor  if  there  be  extreme  improb- 
ability in  its  allegations  :  Moore  v.  Il^'lton,  1  Dev.  Eq.  429.  Nor  if  it  be 
merely  upon  information  and  belief:  AVard  v.  Van  Bokkelen  I  Paige  100; 
Apthorpe  v.  Comstock,  Hopkins  143  ;  Poor  v.  Carleton,  3  Sumn.  70 ; 
Holmes  v.  Georgia,  24  Ga.  636  ;  Pidgeon  v.  Oatraan,  3  Rob.  (N.  Y.)  206. 
And,  moreover,  where  the  equity  of  an  injunction  is  not  charged  to  be  in 
the  knowledge  of  the  defendant,  and  the  defendant  merely  denies  all 
knowledge  and  belief  of  the  facts  alleged  therein,  the  injunction  will  not 
be  dissolved,  on  the  bill  and  answer  alone :  Rodgers  v.  Rodgers,  1  Paige 
426;  Quackenbush  r.  Van  Riper,  Saxton  476;  Everly  r.  Rice,  3  Green 
Ch.  553. 

Upon  an  application  to  dissolve  an  injunction  on  bill  and  answer,  the 
defendant's  answer  is  entitled  to  the  same  credit  as  the  complainant's  bill. 
It,  therefore,  makes  no  difference  on  such  an  application  that  the  bill  is 
supported  by  the  oaths  of  several  complainants :  Manchester  v.  Dey,  6 
Paige  295. 

An  injunction  cannot  be  obtained  on  an  amended  bill  having  been  dis- 
solved on  the  original  bill,  for  default,  before  appearance :  Zulueta  v.  Vin- 
cent, 14  Beav.  209 ;  contra,  Eyton  v.  Mostyn,  3  De  G.  &  Sm.  518.  See 
further,  post,  note  to  p.  356. 


400  ADAMS's    DOCTRINE    OF    EQUITY. 

difficult  to  recover,  he  may  haA'^e  the  injunction  continued 
on  payment  of  the  money  into  Court.^  If  he  is  desirous 
to  try  his  liability  at  law,  the  injunction  will  be  dissolved 
with  liberty  to  apply  again  after  a  verdict ;  but  unless 
the  defendant's  right  at  law  be  admitted,  he  will  not  be 
restrained  from  trying  it,  except  where  it  is  obvious  from 
his  own  answer  that  the  relief  sought  must  ultimately  be 
decreed.  Where  the  question  has  been  already  tried  at 
law,  and  judgment  obtained  by  the  plaintiff  there,  he  will 
be  restrained  from  issuing  execution,  if  it  appear  that 
there  is  an  equitable  question  (c)  to  be  decided  before  the 
matter  can  be  safely  disposed  of.  If  at  the  hearing  the 
decision  is  with  the  plaintiff  in  equity,  the  injunction  is 
made  perpetual. 

The  right  to  grant  this  injunction  after  judgment,  was 
at  one  time  the  subject  of  a  violent  contest.  It  was  al- 
leged by  the  common  law  judges,  that  after  judgment 
there  was  no  power  in  Chancery  to  enjoin  against  execu- 
tion.^ And  it  was  said,  that  if  after  judgment,  the  Chancel- 
lor grant  an  injunction  and  commit  the  plaintiff  at  law  to 
the  Fleet,  the  Court  of  King's  Bench  will  discharge  him 
by  habeas  corpus.     In  the  reign  of  Henry  8,  the  assertion 

[c]  Playfair  v.  Thames  Junction  Railway  Company,  9  L.  J.  N.  S.  253 ; 
1  Railway  Cases  640 ;  Barndrd  v.  Wallis,  Cr.  &  P.  85  ;  Bentinck  v.  Wil- 
link,  2  Hare  1. 

^  See  Anderson  v.  Noble,  1  Drewry  143.  A  debtor  who  seeks  an  in- 
junction against  a  void  judgment  is  not  obliged  to  bring  money  into  court 
before  he  can  claim  its  interposition :  Edrington  v.  AUsbrooks,  21  Texas 
186. 

*  In  Macon,  &c.,  R.  R.  Co.  v.  Parker,  9  Ga.  394,  an  injunction  was 
granted  to  restrain  the  sale  under  several^. y*a.'«  of  a  railroad  of  a  hun- 
dred miles  long,  and  running  through  six  counties,  on  the  ground  of  irre- 
parable injury,  and  the  court  proceeded,  instead,  to  decree  a  sale  of  the 
whole  at  one  time. 


OF    IIWUNCTION,     ETC.  401 

of  this  jurisdiction  *was  one  of  the  articles  of  im-  r-^-.  q^^ 
peachment  against  Cardinal  Woolsey.  The  same 
opposition  was  continued  against  Woolsey's  successor,  Sir 
Thomas  More.  And  in  the  reign  of  James  I.,  under  the 
Chancellorship  of  Lord  Ellesmere,  a  vehement  discussion 
took  place  on  the  subject,  in  which  Lord  Coke  came  for- 
ward as  the  chief  opponent  of  the  jurisdiction.  The  ques- 
tion at  last  was  brought  before  the  King,  and  was  decided 
by  him  in  favor  of  the  jurisdiction.  (</)  The  exercise  of 
the  jurisdiction  is  not  frequent,  for  it  is  seldom  that  a 
plaintiff  in  equity  delays  his  application  until  judgment 
has  been  obtained  at  law ;  and  where  such  delay  takes 
place,  it  is  itself  a  ground  for  refusing  aid,  unless  the  rea- 
sons for  requiring  it  were  not,  and  could  not  by  reason- 
able diligence  have  been  discovered  before  the  trial.  The 
rule  on  this  subject  appears  to  be  as  fo'lows  :  First :  that 
if,  after  judgment,  additional  circumstances  are  discovered 
not  cognisable  at  law,  but  converting  the  controversy  into 
matter  of  equitable  jurisdiction,  the  Court  of  Chancery 
will  interpose.  Secondly  :  that  even  though  the  circum- 
stances so  discovered  would  have  been  cognisable  at  law, 
if  known  in  time,  yet  if  their  non-discovery  has  been 
caused  by  fraudulent  concealment,  the  fraud  will  warrant 
an  injunction.  But,  thirdly,  that  if  the  newly-discovered 
facts  would  have  been  cognisable  at  law,  and  there  has 
been  no  fraudulent  concealment,  the  mere  fact  of  their 
late  discovery  will  not  of  itself  create  an  equity ;  although 
if  a  bill  of  discovery  has  been  filed  in  due  time,  the  pro- 
ceedings at  law  might  have  been  stayed  until  the  dis- 
covery was  obtained.  And  still  less  can  any  equity  arise, 
if  the  facts  were  known  at  the  time  of  the  trial,  and  the 
grievance  complained  of  has  been  caused  either  by  a  mis- 

(d)  Note  on  Crowley's  Case,  2  Sw.  22,  n. 
26 


402  ADAMS's    DOCTRINE    OF    EQUITY. 

take  in  pleading,  or  other  mismanagement,  or  by  a  sup- 
posed error  in  the  judgment  of  the  Court. (^)^ 

(e)  Bateman  v.  Willoe,  1  Sch.  &  L.  201 ;  Harrison  v.  Nettleship,  2  M.  & 
K.  428  ;  Taylor  v.  Sheppard,  1  Y.  &  C.  271. 

^  Any  fact  which  clearly  proves  it  to  be  against  conscience  to  execute  a 
judgment  at  law,  and  of  which  the  injured  party  could  nnt  have  availed 
himself  in  a  Court  of  law,  or  of  which  he  might  have  availed  himself,  but 
was  prevented  by  fraud  or  accident,  unmixed  with  any  fault  or  negligence 
in  himself  or  his  agents,  will  authorize  a  Court  of  equity  to  interfere  by 
injunction :  Marine  Ins.  Co.  v.  Hodgson,  7  Cranch  332.  Especially  in  case 
of  fraud  :  Lee  v.  Baird,  4  Hen.  &  Mnnf.  453  ;  Wierich  v.  De  Zoya,  2  Gilman 
885  ;  Powers  v.  Butler,  3  Green  Ch.  465  ;  Wingate  v.  Haywood,  40  N.  H. 
437;  Emerson  v.  Udoll,  13  Verm.  477  ;  Rust  v.  Ware,  6  Gratt.  50:  Hum- 
phreys V.  Leggett,  9  How.  U.  S.  297  ;  Hahn  v.  Hart,  12  B.  Monr.  426 : 
Deaver  v.  Erwin,  7  Ired.  Eq.  250 ;  Nelson  v.  Rockwell,  14  Illinois  375 ; 
Burton  v.  Wiley,  26  Verm.  430 ;  Conway  v.  Ellison,  14  Ark.  360 ;  Trevor 
V.  McKay,  15  Ga.  550 ;  Moore  v.  Gamble,  1  Stockton  246  ;  Clifton  v.  Livor, 
24  Georgia  91 ;  Clute  v.  Potter,  37  Barb.  201  ;  Blakesley  v.  Johnson,  13 
Wis.  530;  Day  ©.Welles,  31  Conn.  344;  Hendrickson  v.  Hinckley,  17  How. 
U.  S.  443  ;  Givens  v.  Campbell,  20  Iowa  79  ;  Roebuck  v.  Harkins,  38  Ga. 
174.    An  injunction  may  be  granted  against  a  judgment  on  the  ground  of 
a  subsequent  release,  though  both  a  motion  to  set  aside  and  for  an  audita 
querela  have  been  made  and  refused  in  the  Court  in  which  the  judgment 
was  obtained:  Williams  v.  Roberts,  8  Hare  315.    As  to  injunction  against 
a  decree  in  equity  on  the  ground  of  after  discovered  evidence,  see  Bayse 
V.  Beard,  12  B.  Monr.  581.     An  injunction  was  refused  in  Forsythe  v. 
McCreight,  10  Rich.  Eq.  308,  In  Ridgway  v.  Bank  of  Tennessee,  1 1  Humph. 
523,  it  was  held  that  a  judgment  on  which  the  sheriff,  by  collusion,  had 
falsely  returned  a  service  on  the  defendant,  could  be  enjoined:  followed 
in  Bell  v.  Williams,  1  Head  229  ;  see  also  Owens  v.  Ranstead,  22  111.  167 ; 
but  contra,  Walker  v.  Bobbins,  14  How.  U.  S.  584.     In  general,  however, 
a  Court  of  equity  will  not  enjoin  on  the  ground  of  the  irregularity  of  a 
judgment:  Suydam  v.  Beals,  4  McLean  12;  Methodist  Church  v.  Mayor, 
&c.,  of  Baltimore,  6  Gill  391 ;  Boyd  v.  The  Chesapeake  Co.,  17  Md.  195; 
Saunders  t".  Albritton,  37  Ala.  716.  Nor  for  a  defect  of  jurisdiction  merely: 
Stokes  V.  Knarr,  11  AVis.  391 ;  Sanches  v.  Carriaga,  31  Cal.  170;  see  also 
Crandall  ».  Bacon,  20  Wis.  639  ;  nor  for  errors  of  law  in  a  Court  of  com- 
petent jurisdiction :  Reeves  v.  Cooper,  1  Beas.  223.     And  no  injunction 
will  be  granted  against  a  judgment  where  there  has  been  negligence  on 
the  part  of  the  complainant  in  availing  himself  of  a  defence  at  law,  or 
other  neglect.    See  Truly  v.  Wanser,  5  How.  U.  S.  141 ;  Essex  v.  Berry,  2 


OF    INJUNCTION,     ETC.  403 

The  jurisdiction  to  enjoin  against  proceedings  in  other 
Courts  is  not  limited *to  proceedings  in  the  Courts  r*i  gg-i 
of  law,  although  it  is  more  usually  exerted  with 
reference  to  them.  But  it  is  equally  applicable  to  pro- 
ceedings in  the  Ecclesiastical  and  Admiralty  Courts,  in 
the  Colonial  Court,  and  even  in  the  Courts  of  foreign  and 
independent  countries,  where  the  parties  are  personally 
within  the  jurisdiction,  and  are  attempting  to  proceed 
elsewhere  in  respect  of  part  of  a  transaction,  the  whole  of 
which  can  be  investigated  by  the  Court  of  Chancery 
alone.  (/)^    The  injunction,  however,  in  these  cases,  is  not 

« 

(/)  Duncan  r,  McCalmont,  3  Beav.  409 ;  Glascott  v.  Lang,  3  M.  &  C. 

Verm.  161:  "Williams  v.  Lockwood,  1  Clarke  172;  Southgate  v.  Mont> 
gomery.  1  Paige  Ch.  41 ;  Stanard  v.  Rogers,  4  Hen.  &  Munf.  438  ;  Farmers' 
Bank  v.  Vanmeter,  4  Rand.  553 ;  Brickell  v.  Jones,  2  Hay.  357 ;  Fentris 
V.  Robins,  N.  C.  Term  177 ;  CuUum  v.  Casey,  1  Ala.  N.  S.  351 ;  Haughy 
V.  Strang,  2  Port.  177 ;  Mock  v.  Cundiff,  6  Id.  24  -,  Lucas  v.  Bank  of  Darien, 

2  Stew.  280 ;  Thomas  r.  Phillips,  4  S.  &  M.  358 :  Little  v.  Price,  1  Md.  Ch> 
182;  Lyday  v.  Douple,  17  Md.  188;  Sample  v.  Barnes,  14  How.  U.  S.  70^ 
Warner  v.  Conant,  24  Verm.  351 ;  Lockard  v.  Lockard,  16  Ala.  423 ;  Foster 
V.  State  Bank,  17  Id.  672 ;  Skinner  v.  Deming,  2  Cart.  (Ind.;  558  ;  Prewitt 
V.  Perry,  6  Texas  260;  Briesch  v.  McCauley,  7  Gill  189 ;  Hood  v.  N.  Y.  & 
N.  H.  Railroad  Co.,  23  Conn.  609 ;  Wynn  v.  Wilson,  1  Hempst.  C.  C.  698 
Harnsberger  v.  Kinney,  13  Gratt.  511  ;  Conway  v.  Ellison,  14  Ark.  360 
Dickerson  v.  Comm'rs.,  6  Ind.  128  ;  Vaughn  v.  Johnson,  1   Stockt.  173 
George  v.  Strange,  10  Gratt.  499  ;  Schricker  f.  Field,  9  Iowa  372  ;  McCoUum 
V.  Prewitt,  37  Ala.  573 ;  Franklin  Mill  Co.  v.  Schmidt,  50  111.  208  ;  Bryan 
V.  llickson,  40  Ga.  465.     Nor  where  the  only  ground  is  discovery,  which 
might  have  been  sought  and  obtained  before  the  judgment:  Lansing  f. 
Eddy,  1  John.  Ch.  49 ;  Brown  v.  Swann,  10  Pet.  497 ;  Thomp8«m  v.  Berry, 

3  John.  Ch.  395 ;  Bartholomew  v.  Yaw,  9  Paige  165 ;  McGrew  v.  Tom- 
beckee  Bank,  5  Porter  547.  An  administrator,  however,  who  must  derive 
his  information  chiefly  from  others,  is  not  bound  by  the  strict  rules  on 
this  subject,  and  may  obtain  an  injunction  for  a  pretermitted  defence, 
after  permitting  a  judgment  in  ignorance  thereof:  Hevdett  v.  Hewlett,  4 
Edw.  Ch.  9. 

In  Gough  V.  Pratt,  9  Md.  526,  it  was  held,  that  even  after  judgment  at 
law  upon  a  security  given  for  a  gaming  debt,  the  defendant  may  have 
relief  in  equity,  although  he  did  not  resist  the  suit  at  law  on  that  ground. 

^  A  Court  of  Chancery  will  not,  by  injunction,  restrain  a  suit  or  pro- 


404  ADAMS's    DOCTRINE    OF    EQUITY. 

obtained  as  of  course  on  the  defendant's  default,  but  must 
be  the  subject  of  a  special  application  to  the  Court.  (^) 

451  ;  Bunbury  v.  Bunbury,  1    Bea.  318.     [See  Hope  v.  Carnegie,  L.  R.   1 
Ch.  Ap.  320.] 
[g)  Anon.,  1  P.  WmS.  301  ;  Macnamara  v.  Macquire,  1  Dick.  223. 

Deeding  previously  commenced  in  a  Court  of  a  sister  state,  or  in  any  of 
the  federal  Courts :  Mead  v.  Merritt,  2  Paige  402  ;  Burgess  v.  Smith,  2 
Barb.  Ch.  276  ;  Williams  v,  Ayrault,  31  Barb.  366;  Coster  v.  Griswold,  4 
Edw.  Ch.  364.  The  United  States  Courts,  in  general,  are  prohibited  by 
statute  (1793)  from  granting  injunctions  against  proceedings  in  state 
courts.  See  Rogers  v.  Cincinnati,  5  McLean  337  ;  Orton  v.  Smith,  18  How. 
263;  Kittredge  r.  Emerson,  15  N.  H.  227.  An  injunction  issued  by  a  state 
court  is  inoperative  in  any  manner  to  affect  proceedings  in  the  federal 
Courts  :  U.  S.  V.  Keokuk,  6  Wall.  (U.  S.)  514.  By  the  2d  section  of  the 
United  States  Bankrupt  Act  of  March  2,  1867,  general  jurisdiction  under 
the  Act  is  conferred  upon  the  Circuit  Courts,  vrith  authority  on  application 
in  proper  form  of  any  party  aggrieved,  to  hear  and  determine  the  case  in 
a  court  of  equity ;  and  by  the  40th  section  of  the  same  Act,  the  District 
Courts,  during  the  pendency  of  the  rule  to  show  cause  why  the  defendant 
should  not  be  adjudged  a  bankrupt  on  a  creditor's  petition,  may  by  injunc- 
tion restrain  the  debtor  and  any  other  person  "  from  making  any  transfer 
or  disposition  of  any  part  of  the  debtors  property  not  excepted  by  this 
Act  from  the  operation  thereof,  and  from  any  interference  therewith." 
Under  the  first  of  these  sections  the  Circuit  Court,  sitting  in  equity,  has 
jurisdiction  in  cases  of  involuntary  bankruptcy,  to  restrain  by  injunction 
a  plaintiff  in  an  execution  in  a  state  Court,  from  proceeding  to  the  collec- 
tion of  a  judgment,  when  the  same  was  confessed,  or  the  levy  thereunder 
procured  to  be  made,  with  the  knowledge  on  the  part  of  the  plaintiff,  that 
the  defendant  was  insolvent  or  contemplated  insolvency,  and  with  an  intent 
to  give  a  preference,  or  to  defeat  or  delay  the  operation  of  the  bankrupt 
law.  And  in  case  of  voluntary  bankruptcy,  the  District  Court  will  restrain 
proceedings  in  state  courts  under  state  insolvent  laws.  But  the  United 
States  courts  will  not  interfere  in  cases  of  voluntary  bankruptcy  involving 
questions  which  a  state  court  is  fully  competent  to  decide  ;  nor  to  disturb 
a  lien  pToperly  acquired  :  Irving  v.  Hughes,  7  Am.  Law  Reg.  N.  S.  209 
(U.  S.  Circuit  Court,  E.  Dist.  of  Penna.).  One  Circuit  Court  cannot  con- 
trol or  restrain  proceedings  in  another  :  Roshell  v.  Maxwell,  1  Hemp.  25. 
The  execution  of  a  judgment  can  be  enjoined  by  no  other  court  than  that 
from  which  the  writ  issued  :  Dufossat  v.  Berens,  18  La.  Ann.  339. 

In  an  action  on  the  judgment  of  another  state,  proceedings  may  be 
stayed  by  injunction,  where  such  judgment  was  fraudulently  obtained,  or 
lias  been  since  reversed :  Sumner  v.  Marcy,  3  Wood.  &  Min.  105  ;  McJilton 


OF    INJUNCTION,    ETC.  405 

Injunctions  have  also  been  granted  on  special  equities,  to 
restrain  parties  from  filing  affdavits  of  debt,  with  the 
intent  of  issuing  a  fraudulent  fiat  of  bankruptcy .  (A)  And 
it  has  been  argued,  that  there  is  an  equity  to  restrain 
assignees  from  making  a  dividend,  during  the  pendency 
of  a  suit  for  an  equitable  claim.  But  it  is  decided  that 
no  such  equity  exists,  and  that  the  administration  of  a 
bankrupt's  property,  when  once  it  is  determined  what 
the  property  is,  falls  wholly  within  the  province  of  the 
Court  of  Bankruptcy .  (?) 

If  the  Court  in  which  the  proceedings  complained  of 
have  been  taken,  is  itself  a  Court  of  equita,ble  jurisdic- 
tion, and  competent  to  adjudicate  on  the  whole  matter, 
an  injunction  cannot  be  obtained,  unless  the  suitor  against 
whom  it  is  asked,  has  been  previously  bound  by  a  decree 
of  the  Court  of  Chancery,  or  has  voluntarily  submitted 
to  the  jurisdiction  of  that  Court.  (>?:) 

In  addition  to  the  injunctive  jurisdiction  in  regular 
suits,  there  is  a  similar  authority  exercised  in  a  summary 

{h)  Attwood  V.  Banks.  2  Bea.  192  i  Perry  v.  Walker,  1  X.  C.  C.  672. 
(t)  Halford  v.  Gillow,  13  Sim.  44  ;  Thompson  v.  Derham,  1  Ilare  358. 
{k)  Jackson  v.  Leaf,  1  J.  &  W.  229 ;  Harrison  v.  Gurney,  2  Id.  563 ; 
Boulter  v.  Boulter,  2  Bea.  196,  n.;  Infra,  Administration. 

v.  Love,  13  111.  486 ;  Pearce  v.  Olney,  20  Conn.  544 ;  which  last  case  was 
affirmed  in  Dobson  ».  Pearce,  1  Duer  143 ;  affirmed  on  appeal,  see  3  Am. 
Law  Reg.  206  ;  which  was  the  original  suit.  See  also,  Engel  v.  Schewer- 
man,  40  Ga.  206. 

Where  an  administration  suit  was  pending  in  England,  a  Scotch  corpo- 
ration was  restrained  from  proceeding  against  the  intestate's  estates  in 
Scotland,  the  service  of  the  subpoena  being  at  an  office  of  the  corporation 
in  London :  McLaren  r.  Stainton,  22  L.  J.  Ch.  274.  In  Pennell  ».  Roy, 
17  Jur.  247,  3  De  G.,  Macn.  &  G.  126,  however,  it  was  held  that  the  Eng- 
lish assignees  of  a  bankrupt  owning  real  estate  in  Scotland,  could  not 
maintain  a  bill  for  an  injunction  against  an  alleged  creditor  not  proving 
under  the  commission,  who  had  attached  the  rents  of  the  re.il  estate  by 
suit  in  Scotland,  though  it  appeared  that  the  suit  was  entirely  frivolous. 


406  ADAMS's    DOCTRINE    OF    EQUITY. 

way,  where  proceedings  have  been  taken  in  another  Court, 
r*-|QQ-|  against  or  by  officers  of  the  Court  of  *Chancery, 
in  respect  of  claims  arising  out  of  their  official 
acts.  In  this  as  well  as  the  former  cases,  the  principle 
on  which  the  Court  proceeds  is  that  of  giving  efficacy  to 
its  own  authority  by  rejecting  foreign  interference.  If  its 
processes  are  improperly  or  irregularly  issued,  that  is  a 
matter  to  be  dealt  with  by  itself  alone ;  and  if  redress  be 
sought  elsewhere  an  injunction  will  lie.  If  in  acting  under 
a  regular  authority,  its  officers  misconduct  themselves, 
that  is  a  matter  which  may,  at  the  discretion  of  the  Court, 
be  either  left  to  the  ordinary  tribunals,  or  examined  by 
itself.  But  the  latter  course  is  generally  adopted,  and 
the  parties  are  enjoined  from  having  recourse  to  law.(/) 
The  officers  of  the  Court  may,  e  conver^so,  be  restrained  at 
law  in  respect  of  claims  arising  to  them  in  their  official 
•  capacity,  (m) 

The  relief  by  injunction  against  proceeding  at  law  is 
also  applied  under  a  distinct  equity  on  bills  of  peace  and 
bills  of  interpleader. 

A  bill  of  peace  is  a  bill  filed  for  securing  an  established 
legal  title  against  the  vexatious  recurrence  of  litigation, 
whether  by  a  numerous  class  insisting  on  the  same  right, 
or  by  an  individual  reiterating  an  unsuccessful  claim. 
The  equity  is,  that  if  the  right  be  established  at  law,  it 
is  entitled  to  adequate  protection.^ 

[I)  Frowd  V.  Lawrence,  1  J.  &  W.  635 ;  Phillips  v.  Worth,  2  R.  &  M. 
638;  Aston  v.  Heron,  2  M.  &  K.  390;  Chalie  v.  Pickering,  1  K.  749; 
Empringham  v.  Short,  3  Hare  461  ;  Evelyn  v.  Lewis,  3  Id.  472 ;  Darley 
V.  Nicholson,  1  Conn.  &  L.  207  ;  [Peck  v.  Crane,  25  Verm.  146.] 

(m)  Re  Weaver,  2  M.  &  C.  441 ;  Blundell  v.  Gladstone,  9  Sim.  455 ;  Am- 
brose V,  Dunmow  Union,  8  Bea.  43. 

^  Sheffield  Water  Works  v.  Yeomans,  L.  R.  2  Ch.  Ap.  8.     See  Black  v. 


OF    BILLS    OF    PEACE.  407 

Bills  of  peace  of  the  first  class  are  those  where  the 
same  right  is  claimed  by  or  against  a  numerous  body;  as, 
for  example,  where  a  parson  claims  tithes  against  his 
parishioners,  or  the  parishioners  allege  a  modus  against 
the  parson ;  where  the  lord  of  a  manor  claims  a  right 
against  the  tenants,  or  the  tenants  claim  a  common  right 
against  the  lord;^  or  where  the  owner  of  an  ancient 
mill  claims  service  to  his  mill  from  all  the  tenants  of  a 
*particular  district.  In  all  these  cases,  the  only  r*oooi 
form  of  procedure  at  common  law  would  be  that 
of  a  separate  action  by  or  against  each  parishioner  or 
tenant,  which  would  only  be  binding  as  between  the 


Shreve,  3  Halst.  Ch.  440 ;  Bond  v.  Little,  10  Ga.  395.  In  order  to  the 
maintenance  of  a  bill  of  peace,  the  complainant  must  have  first  established 
his  title  at  law :  Eldridge  v.  Hill,  2  Johns.  Ch.  281 ;  Bond  v.  Little,  10  Ga. 
395  ;  Morgan  v.  Smith,  11  111.  194  ;  Gunn  v.  Harrison,  7  Ala.  585  ;  Lowe 
p.  Lowry,  4  Hammond  78  •,  Harmer  v.  Gwynne,  5  McLean  313 ;  Paterson 
&  Hudson  River  R.  R.  Co.  v.  Jersey  City,  1  Stockt.  (N.  J.)  434;  Smith  v. 
McConnell,  17  111.  135  ;  unless  where  the  parties  to  the  controversy  are 
80  numerous  that  a  suit  in  equity  is  indispensable  to  comprehend  them 
all,  and  to  prevent  a  multiplicity  of  suits :  Eldridge  v.  Hill,  ut  supra ; 
Nicholl  V.  Trustees,  &c.,  1  Johns.  Ch.  166 ;  Lupeer  Co.  v.  Hart,  Harring. 
Ch.  157  ;  Nevitt  v.  Gillespie,  1  How.  (Miss.)  108. 

Where  a  bill  is  filed  for  the  purpose  of  preventing  a  multiplicity  of  suits 
at  law,  and  to  have  the  title  to  land  finally  settled  in  one  suit,  under  the 
direction  of  the  chancellor,  it  seems  that  the  bill  will  be  sustained,  though 
there  has  been  but  one  trial  at  law :  Trustees  of  Huntington  v.  Nicoll,  3 
John.  566.  Bills  to  enjoin  the  defendant  from  repeated  acts  of  trespass 
resemble  bills  of  peace :  Livingston  v.  Livingston,  6  Johns.  Ch.  497.  Such 
are  bills  to  restrain  the  interference  with  or  obstruction  of  a  watercourse : 
Corning  v.  The  Troy  Iron  Factory,  39  Barb.  327 ;  Holsman  v.  The  Boiling 
Spring  Co.,  1  McCart.  335  •,  Lyon  v.  McLaughlin,  32  Verm.  423 ;  Angell 
on  Watercourses,  §  444  ;  Scheetz's  Appeal,  35  Penn.  St.  88.  Courts  of 
equity  will  also  interfere  by  injunction  to  restrain  the  back  flowage  of 
water  :  Sheldon  v.  Rockwell,  9  Wis.  166.     See  post  211,  Nuisance. 

^  A  bill  of  peace  will  not  lie  to  establish  the  rights  of  one  commoner 
alone  ;  it  must  be  filed  for  himself  and  others  :  Phillips  v.  Hudson,  L.  R. 
2  Ch.  Ap.  242. 


408  ADAMS'S    DOCTRINE    OF    EQUITY. 

immediate  parties,  and  would  leave  the  general  right  still 
open  to  litigation.  In  order  to  remedy  this  evil,  a  suit 
may  be  sustained  in  the  Court  of  Chancery,  in  which  all 
parties  may  be  joined,  either  individually  or  as  repre- 
sented by  an  adequate  number.  If  any  question  of  right 
be  really  in  dispute  it  will  be  referred  to  the  decision  of 
a  Court  of  law ;  and  when  the  general  right  has  been 
fairly  ascertained,  an  injunction  will  be  granted  against 
further  litigation,  (n)  If  particular  individuals  have  spe- 
cial grounds  of  claim,  those  claims  will  be  left  untouched. 

In  order  to  originate  this  jurisdiction,  it  is  essential 
that  there  be  a  single  claim  of  right  in  all  arising  out  of 
some  privity  or  relationship  with  the  plaintiff. 

A  bill  of  peace,  therefore,  will  not  lie  against  indepen- 
dent trespassers,  having  no  common  claim  and  no  appear- 
ance of  a  common  claim  to  distinguish  them  from  the  rest 
of  the  community  ;  as,  for  example,  against  several  book- 
sellers who  have  infringed  a  copyright,  or  against  several 
persons  who,  at  different  times,  have  obstructed  a  ferry. 
For  if  a  bill  of  peace  could  be  sustained  in  such  a  case, 
the  injunction  would  be  against  all  the  people  of  the  king- 
dom, (o)^ 

There  are  two  cases  which  constitute  apparent  ex- 
ceptions   to   this   rule,   which   are   known   respectively 

{n)  Mitf.  145,  146 ;  How  v.  Bromsgrove,  1  Vern.  22 ;  Tenham  v.  Her- 
bert, 2  Atk.  483. 

(o)  Mitf.  147,  148 ;  Dilly  v.  Doig.  2  Ves.  J.  486. 

^  No  bill  of  peace  will  lie  where  the  rights  and  responsibilities  of  the  de- 
fendants neither  arise  from,  nor  depend  upon,  nor  are  in  any  way  connected 
with  each  other  :  Randolph  v.  Kinney,  3  Rand.  394.  See  Miller  v.  Grandy, 
13  Mich,  540.  An  allegation  that  the  defendants  have  fraudulently  con- 
federated to  harass  the  plaintiflF  with  suits  will  not  uphold  an  injunction 
when  the  defendants  claim  adversely  to  each  other  :  McHenry  v.  Hazard, 
45  Barb.  (N.  Y.)  657. 


OF     BILLS    OF    PEACE.  409 

as  the  "  Case  of  the   Duties,"  and  the   "  Case  of  the 
Fisheries."  (j!?) 

In  the  first  of  these  cases,  the  claim  was  for  a  duty  on 
all  imported  cheese.  And  the  case  has  been  sometimes 
treated  as  if  the  City  of  London  had  filed  a  bill,  in  the 
nature  of  a  bill  of  peace,  against  several  importers,  claim- 
ing to  haAe  the  *duties  permanently  established,  r^on-i-i 
From  the  report,  however,  that  does  not  appear 
to  have  been  the  case.  It  appears  that  the  corporation 
filed  distinct  bills  against  several  importers ;  first  against 
A.,  then  against  B.,  and  then  the  bill  in  question  against 
C.  Decrees  being  obtained  against  A.  and  B.,  they 
claimed  a  right,  not  to  enforce  those  decrees  against  C, 
but  to  give  in  evidence  the  depositions  on  which  they  had 
been  founded ;  alleging,  however,  at  th^  same  time,  that, 
even  without  those  depositions,  they  had,  in  the  suit 
against  C.  himself,  given  other  proof  sufficient  to  establish 
their  right.  The  decree  decides,  that  the  right  was  es- 
tablished against  C;  but  the  reasons  for  the  decision  are 
not  reported ;  and  it  does  not  appear  whether  any  weight 
was  in  fact  given  to  the  previous  suits.  The  case,  there- 
fore, appears  to  be  no  authority  for  the  doctrine,  that  a 
number  of  defendants,  who  were  severally  liable  to  the 
duties,  might  have  been  united  in  a  bill  of  peace. 

In  the  second  case,  the  plaintiff  claimed  a  fishery  in 
the  river  Ouse ;  and  filed  a  bill  of  peace  against  several 
trespassers.  Lord  Hardwicke's  first  impression  was 
against  the  bill ;  but  he  ultimately  allowed  it,  partly  on 
the  authority  of  the  City  of  London  v.  Perkins,  and 
partly  because  the  defendants  were  in  fact  distinguished 
from  the  community  at  large,  as  being  owners  of  adjacent 
grounds,  and  as  claiming  fisheries  in  that  character.     The 

(p)  City  of  London  v.  Perkins,  3  B,  P.  C.  by  Toml.  602 ;  Mayor  of  York 
V.  Pilkington,  1  Atk.  282 ;  Story  on  Pleading,  s.  124,  125. 


410  ADAMS's     DOCTRINE     OF     EQUITY. 

first  of  these  grounds,  as  I  have  already  suggested,  is 
hardly  Warranted  by  the  report  of  that  case.  The  second 
ground  appears  to  be  that  on  which  Lord  Hardwicke 
mainly  relied,  and  is  consistent  with  the  terms  in  which 
the  case  was  spoken  of  by  LordiEldon.(5') 

Bills  of  peace  of  the  second  class  are  those  where  a 
right,  claimed  by  an  individual,  is  indefinitely  litigated  by 
him  without  success.  The  necessity  for  bills  of  this 
P2021  ^^^^^  originates  *in  the  nature  of  the  action  of 
ejectment,  which  is  based  on  a  fictitious  dispute 
between  fictitious  parties,  so  that  the  rights  of  the  real 
litigants  are  only  indirectly  tried.  The  consequence  of 
this  is,  that  the  result  of  the  action  is  not  conclusive,  but 
that  fresh  actions  may  be  repeatedly  brought,  and  the 
successful  party  harassed  by  indefinite  litigation.  In 
order  to  remedy  this  oppression,  a  jurisdiction  has  been 
assumed  by  the  Court  of  Chancery ;  and  a  bill  will  lie, 
after  repeated  trials  at  law  and  satisfactory  verdicts,  to 
have  an  injunction  against  further  litigation.^  The  right 
to  this  jurisdiction  was  formerly  much  questioned.  Lord 
Cowper,  in  a  celebrated  case,  where  the  title  to  land  had 
been  five  times  tried  in  ejectment,  and  five  uniform  ver- 
dicts given,  refused  to  exercise  it ;  but  his  decision  was 
overruled  by  the  House  of  Lords. (r)^ 

{q)  City  of  London  v.  Perkins,  3  B.  P.  C.  602  ;  Mayor  of  Yorkw.  Pilking- 
ton,  1  Atk.  282  ;  Wealew.  West  Middlesex  Waterworks,  IJ.  &  W.  356,  369. 

(r)  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261 ;  s.  c.  4  B.  P.  C.  by  Toml. 
373  ;  Mitf.  143,  144. 

'  See  Marsh  v.  Reed,  10  Ohio  347.  By  statutory  provisions  in  Penn- 
sylvania, and  perhaps  in  other  states,  two  verdicts  in  ejectment,  for  either 
party,  are  an  absolute  bar  to  any  future  suit.  Such  provision  will  not  in- 
terfere with  the  right  of  a  court  of  the  United  States,  to  entertain  a  bill  of 
peace,  as  to  ejectment,  in  its  own  jurisdiction,  and  the  bill  may  be  main- 
tained in  a  proper  case,  though  the  technical  bar  of  the  statute  does  not 
apply  :  Craft  v.  Lathrop,  2  Wall.  Jr.  103. 

*  On  a  principle  similar  to  that  which  governs  bills  of  peace  of  the 


OF    BILLS    OP    INTERPLEADER.  411 

A  bill  of  interpleader  is  a  bill  filed  for  the  protection 
of  a  person,  from  whom  several  persons  claim  legally  or 
equitably  the  same  thing,  debt,  or  duty;  but  who  has 
incurred  no  independent  liability  to  any  of  them,  and 
does  not  himself  claim  an  interest  in  the  matter.  The 
equity  is  that  the  conflicting  claimants  should  litigate  the 
matter  amongst. themselves,  without  involving  the  stake- 
holder in  their  dispute.^ 

The  principle  on  which  the  jurisdiction  is  based,  that 
of  protecting  a  mere  stakeholder  between  conflicting  claim- 
ants, was  always  recognised  at  common  law,  and  was 
applied  where  a  chattel  had  come  to  a  man's  possession  by 
accident,  or  by  bailment  from  both  claimants  jointly,  or 
from  those  under  whom  both  made  title. 

The  technical  forms  of  pleading  at  law  excluded  the 

second  class,  Courte  of  Equity  will  interfere  to  quiet  the  enjoyment  of  a 
right,  or  to  establish  it  by  a  decree,  or  to  remove  a  cloud  from  a  title. 
See  Crews  v.  Burcham,  1  Black  352;  Cross  v.  De  Valle,  1  Wall.  S.  C.  1 ; 
Kennedy  ».  Kennedy,  43  Penn.  St.  417 ;  Bean  v.  Coleman,  44  N.  H.  539. 
As  to  bills  to  remove  a  cloud  from  a  title,  see  Doe  v.  Doe,  37  N.  H.  268  ; 
Kimberly  v.  Fox,  27  Conn.  307 ;  Munson  v.  Munson,  28  Id.  582 ;  Eldridge 
V.  Smith,  34  Verm.  484;  Story's  Eq.  §  700;  Chapter  on  Rescission  and 
Cancellation,  ante. 

^  Strange  v.  Bell,  11  Ga.  103;  Farley  ».  Blood,  10  Foster  (N.  H.)  354. 
A  bill  of  interpleader,  strictly  so  called,  is  where  the  complainant  claims 
no  relief  against  either  of  the  defendants,  but  only  asks  for  leave  to  pay 
the  money,  or  deliver  the  property,  to  the  one  to  whom  it  of  right  belongs, 
and  that  he  may  thereafter  be  protected  from  the  claims  of  both  :  Bedell 
V.  Hoffman,  2  Paige  Ch.  199 ;  Lincoln  v.  Rutland,  &c.,  R.  R.  Co.,  24  Verm. 
639  ;  Mount  Holly  Turnpike  Co.  v.  Ferree,  2  Green  (N.  J.)  117  ;  Burton 
».  Black,  32  Ga.  53  ;  Hathaway  v.  Foy,  40  Mo.  540 ;  Cady  ».  Potter,  55 
Barb.  (X.  Y.)  463.  The  right  of  interpleader  is  given  now  by  statute,  in 
England  and  many  of  the  United  States,  to  defendants  at  law  in  most 
cases.  In  Missouri  such  a  bill  may  be  maintained  against  non-residents 
in  certain  cases :  Freeland  v.  Wilson,  18  Mo.  (3  Bennett)  380.  The  de- 
fendants to  a  bill  of  interpleader  may  compromise  the  dispute ;  and  the 
complainant  has  no  right  to  prevent  this :  Horton  p.  The  Church,  34  Verm. 
309. 


412  ADAMS's    DOCTRINE     OF    EQUITY. 

application  of  this  principle,  except  where  the  possession 
had  arisen  from  bailment  or  accident;  but  the  principle 
itself  was  acknowledged;  and  in  equity,  where  those  forms 
did  not  exist,  its  operation  was  extended  to  all  cases 
r*20S1  ^^®^®  **^^®  same  thing,  debt,  or  duty  was  the 
subject  of  both  claims,  (s)  The  equity  originates 
in  the  double  claim  made  on  the  complainant  and  the  in- 
adequate protection  afforded  him  at  law,  The  fact,  there- 
fore, that  both  the  claims  are  legal,  does  not  preclude  the 
party  sued  from  resorting  to  equity;  as,  for  example,  when 
the  assignees  of  a  bankrupt  and  the  bankrupt  himself, 
being  unable  to  agree  on  the  validity  of  the  fiat,  threaten 
separate  actions  against  a  debtor.  (^)  The  necessity,  how- 
ever, for  bills  of  interpleader,  where  both  the  claims  are 
l^gal,  is  much  diminished,  although  the  jurisdiction  is  un- 
affected, by  a  late  statute,  enacting  that  on  the  application 
of  the  defendant  in  any  action  of  assumpsit,  debt,  detinue, 
or  trover,  showing  that  he  claims  no  interest  and  that  the 
right  is  claimed  by,  or  supposed  to  belong  to,  some  third 
party,  who  has  sued  or  is  expected  to  sue,  and  that  the  de- 
fendant does  not  collude  with  such  third  party,  but  is 
ready  to  bring  into  Court  or  otherwise  dispose  of  the  sub- 
ject-matter as  the  Court  shall  direct,  such  third  party  may 
be  ruled  to  appear,  the  proceedings  in  the  action  may  be 
stayed,  and  directions  may  be  given  for  trying  the  right 
between  the  real  claimants,  (w) 

If  one  of  the  claims  be  equitable,  the  statute  does  not 
apply,  and  the  jurisdiction  is  in  equity  alone. (2;)^ 

(5)  Mitf.  141 ;  Crawshay  v.  Thornton,  2  M.  &  C.  1,  21. 

\t)  Lowndes  ».  Cornford,  18  Ves.  299. 

(w)  1  &  2  Wm.  4,  c.  58. 

[v)  Langton  v.  Horton,  3  Bea.  464. 

^  A  bill  of  interpleader  may  be  filed,  although  the  claim  of  one  of  the 
claimants  is  actionable  at  law,  and  that  of  the  other  in  equity :  Lozier's 


OF    BILLS    OF    INTERPLEADER.  413 

It  is  apparent  from  the  definition  already  given  that,  in 
order  to  originate  the  equity  of  interpleader,  three  things 
are  essential;  viz.,  1.  That  the  same  thing,  debt,  or  duty 
be  claimed  by  both  the  parties  against  whom  relief  is 
asked;  2.  That  the  party  seeking  relief  have  incurred  no 
independent  liability  to  either  claimant;  and  3.  That  he 
claim  no  interest  in  the  matter. 

1.  The  same  thing,  debt,  or  duty,  must  be  claimed  by 
both.^ 

*If  the  subject  in  dispute  has  a  bodily  exist-  r^c)OA-] 
tence,  as  in  the  original  cases  of  interpleader  at 
law,  no  difficulty  can  arise  on  the  ground  of  identity; 
but  where  it  is  a  chose  in  action,  it  becomes  necessary  to 
determine  what  constitutes  identity.  And  this  is  a  ques- 
tion attended  occasionally  with  much  difficulty,  and 
which,  in  each  case,  must  be  determined  by  the  original 
nature  and  constitution  of  the  debt.     Where,  for  example, 

• 

an  auctioneer,  by  direction  of  the  owner,  had  sold  to  two 
persons  successively,  and  had  received  a  deposit  from 
each,  it  was  held  that  the  auctioneer  could  not  support  a 
bill  of  interpleader  against  the  owner  and  the  two  pur- 
chasers;   because,  although  there  was  one  question  in 

Ex'rs.  V.  Van  Saun's  Adm'rs.,  2  Green's.  Ch.  325  ;  Yates  v.  Tisdale,  3  EdM 
Ch.  71 ;  Hamilton  v.  Marks,  3  De  G.  &  Sm.  638.  But  see  Hurst  r.  Sh^ 
don,  13  C.  B.  N.  S.  750. 

And  where  a  person  is  in  danger  of  being  doubly  vexed  by  adverse 
claimants,  whether  by  suit  commenced  or  only  threatened,  he  may  file  a 
bill  of  interpleader  :  Gibson  v.  Goldthwaile,  7  Ala.  281  ;  Yates  v.  Tisdale, 
supra  ;  Richards  r.  Salter,  6  Johns.  Ch.  445.  But  it  seems  that  where  the 
double  claim  has  been  occasioned  by  the  act  of  the  stakeholder,  he  has  no 
right  to  file  a  bill  of  interpleader :  Desborough  v.  Harris,  4  De  G.,  M.  &  G. 
439. 

^  See  City  Bank  r.  Bangs,  2  Paige  Ch.  570  •,  Hayes  v.  Johnson,  4  Ala. 
267  ;  Briant  v.  Reed,  1  McCart.  271.  If  the  bill  shows  afifirmatively  that 
neither  of  the  defendants  has  a  right  to  the  fund  it  will  be  dismissed  on 
demurrer:  Barker  c.  Swain,  4  Jon.  Eq.  220. 


414  ADAMS's    DOCTRINE    OF    EQUITY. 

common  between  the  purchasei^,  viz.,  which  was  to  be 
the  purchaser  of  the  estate,  their  claims  as  against  the 
auctioneer  were  for  two  different  things,  viz.,  by  each  for 
his  own  deposit.  The  bill,  therefore,  was  dismissed  as 
against  a  second  purchaser  with  costs,  and  it  was  decreed 
that  the  seller  and  the  first  purchaser  should  interplead 
as  to  the  first  deposit.  And  again  at  law,  where  a  pur- 
chaser of  tea  was  sued  by  the  seller  for  the  price,  and  was 
also  sued  in  trovor  by  a  person  who  alleged  himself  to  be 
the  real  owner,  it  was  held  not  to  be  a  case  of  interpleader; 
for  the  parties  were  not  seeking  the  same  thing.  The  one 
was  endeavoring  to  obtain  the  price  of  the  goods,  the 
other  damages  for  their  conversion,  (e^;) 

2.  The  party  seeking  relief  must  have  incurred  no  in- 
dependent liability  to  either  claimant. 

In  the  case,  therefore,  of  a  tenant  sued  by  his  landlord, 
or  an  agent  by  his  principal,  a  claim  adverse  to  the  land- 
lord or  principal  will  not  warrant  a  bill  of  interpleader, 
unless  it  originate  in  his  own  act,  done  aft^er  the  com- 
mencement of  the  tenancy  or  agency,  and  creating  a 
doubt  who  is  the  true  landlord  or  principal,  to  whom  the 
tenancy  or  agency  refers,^     In  like  manner  a  bill  of  inter- 

(«7)  Glyn  V.  Duesbury,  11  Sim.  139  ;  Hoggart  v.  Cutts,  Cr.  &  P.  197  ; 
Slaney  v.  Sidney,  14  Mee.  &  W.  800;  15  Law  J.  Exch.  72. 

^  Whitewater,  &c.,  Co.  v.  Coinegys,  2  Cart.  (Ind.)  469  ;  Crane  v.  Burn- 
trager,  1  Cart.  165  ;  Cook  v.  Rosslyn,  1  Giff.  167.  A  strict  bill  of  inter- 
pleader cannot  be  maintained  by  a  bailee  or  agent,  to  settle  the  conflicting 
claims  of  bailor  or  principal,  and  a  stranger  who  claims  the  property  by  a 
distinct  and  independent  title.  Neither  can  an  attorney  main^in  such  a 
bill  to  settle  the  claim  for  money  which  he  has  collected  for  his  client : 
Marvin  v.  Elwood,  11  Paige  Ch.  1^65.  But,  it  seems,  a  bill  of  interpleader, 
as  between  principal  and  agent,  is  admissible,  where  the  claim  is  under  a 
derivative  and  not  under  an  adverse  title.  And  hence,  an  attorney  who 
has  collected  money,  may  file  a  bill  of  interpleader  in  respect  of  the  same, 
against  defendants  who  set  up  a  derivative  claim  from  the  person  for  whom 


OF    BILLS    OF     INTERPLEADER.  415 

pleader  will  not  lie,  if  the  party  seeking  relief  has  ac- 
knowledge a  title  *in  one  of  the  claimants,  and  r*9Ar-i 
has  thus  incurred  an  independent  liability  to  him. 
If  misrepresentation  was  used  to  obtain  that  acknowledg- 
ment, it  may  create  an  equity  to  be  released  from  the 
liability ;  but  the  right  of  the  party  deceived  to  insist  on 
such  release  is  not  matter  of  interpleader  between  the 
real  and  apparent  owners.  (:r)  ' 

3.  He  must  claim  no  interest.^ 

It  has  been  held,  therefore,  that  if  a  deposit  is  made  by 
a  purchaser  at  an  auction,  and  the  auctioneer  is  afterwards 
sued  for  the  deposit  by  the  purchaser  and  vendor,  he  can- 
not sustain  a  bill  of  interpleader  against  them,  if  he 
claims  to  deduct  from  his  deposit  his  commission  and  the 
duty.(^)2 

(z)  Crawshay  v.  Thornton,  2  M.  &  C.  1 ;  Stuart  v.  Welch,  4  Id. 
305  ;  Jew  V.  Wood,  Cr.  &  P.  185. 

(y)  Mitchell  v.  Hayne,  2  S.  &  S.  63 ;  Moore  v.  Usher,  7  Sim.  384  ;  Big- 
nold  V.  Audland,  11  Sim.  24. 

the  attorney  undertook  the  collection  ;  and  this,  although  he  may  be  en- 
titled to  retain  a  part  of  it  to  compensate  his  services  :  Gibson  v.  Gold- 
thwaite,  7  Ala.  281.  So,  an  executor,  standing  between  two  claimants,  one 
of  whom  claims  by  title  paramount  to  the  testator's,  and  the  other  as  a 
legatee  under  the  will,  is  not  entitled  to  an  interpleader ;  his  duty  being 
clearly  to  protect  the  legatees :  Adams  v.  Dixon,  19  Ga.  513.  He  may, 
however,  file  a  bill  in  the  nature  of  an  interpleader  to  determine  whether, 
under  a  proper  construction  of  a  will,  slaves  in  his  possession  are  entitled 
to  their  freedom,  making  the  legatees  and  next  of  kin  of  the  testator 
parties:  Osborne  v.  Taylor,  12  Gratt  (Va.)  17.  See  Crosby  v.  Mason,  32 
Conn.  482. 

*  Anderson  v.  Wilkinson,  10  Sm.  &  M.  601.  Yet  it  is  no  objection  to  a 
bill  of  interpleader,  that  the  complainant  has  an  interest  in  respect  of  other 
property  not  in  the  suit,  but  which  might  be  litigated,  that  one  party, 
rather  than  the  other,  should  succeed  in  the  interpleader,  so  as  to  increase 
his  own  chance  of  success,  in  respect  of  such  other  property.  This  is  only 
an  interest  in  the  question,  not  in  the  particular  suit :  Oppenheim  r.  Leo 
Wolf,  3  Sandf.  Ch.  571  ;  see  also,  Gibson  v.  Goldthwaite,  7  Ala.  281  ;  Mc- 
Henry  v.  llazard,  45  Barb.  (N.  Y.)  657. 

*  But,  although  he  claims  a  lien  he  may  subsequently  withdraw  his 


I 

416  ADAMS's    DOCTRINE     OF    EQUITY. 

If  the  circumstances  be  such  as  to  Sustain  the  jurisdic- 
tion, the  party  against  whom  the  double  claim  is  made, 
may,  for  his  own  protection,  file  a  bill  praying  that  the 
claimants  may  interplead  together,  and  that  he  may  be 
indemnified  ;^  and  on  payment  into  Court  of  the  amount 
due  may  obtain  an  injunction  against  any  proceeding  com- 
menced or  threatened  at  law  or  in  equity.  The  injunction 
may  be  obtained  ex  parte  immediately  on  the  bill  being 
filed,  and  stays  proceedings  both  at  law  and  in  equity,  but 
it  stays  them  until  further  order  only,  and  not,  like  the 
common  injunction,  till  answer  and  further  order.  (0)^  It 
is  granted  only  on  the  terms  of  payment  into  Court,  in 
order  that  it  may  not  be  abused  to  delay  payment  of  a 
debt  under  a  pretence  of  doubting  to  whom  it  is  due. 
And  the  order  must  be  so  drawn  as  to  make  the  pay- 
ment a  condition  precedent  But  the  mere  absence  of  an 
offer  to  that  effect  in  the  bill  is  not  a  ground  of  demurrer.  {aY 
When  an  answer  has  been  put  in  by  the  enjoined  defend- 
r*90fi1  ^^^'  ^^  ™^y  move  to  dissolve  *the  injunction,  on 
notice  to  the  plaintiff"  and  his  co-defendant ;  and 

(z)  Crawford  v.  Fisher,  10  Sim,  479  ;  Moore  v.  Usher,  7  Id.  383. 
(a)  Sieveking  v.  Behrens,  2  M.  &  C.  581 ;  Pauli  v.  Von  Melle,  8  Sim. 
327 ;  Meux  v.  Bell,  6  Id.  175. 

claim  and  file  a  bill  of  interpleader :  Jacobson  v.  Blackhurst,  2  John.  &  II. 
486. 

^  The  bill  must  in  general  be  filed  before  or  immediately  after  the  com- 
mencement of  the  action,  and  not  delayed  till  after  verdict  or  judgment : 
Union  Bank  v.  Kerr,  2  Md.  Ch.  460.  But  whei;e  the  suit  is  arllowed  to  go 
to  verdict  for  the  purpose  of  ascertaining  the  amount,  it  is  no  objection : 
Hamilton  v.  Marks,  5  De  G.  &  Sm.  638. 

2  See  Nelson  v.  Barter,  2  Hem.  &  M.  334. 

'  Nash  V.  Smith,  6  Conn.  421.  And  yet  the  plaintiflf  ought  to  offer  to 
bring  the  money  into  court ;  and  an  injunction  will  be  allowed  only  upon 
compliance  with  such  ofiFer  :  Shaw  v.  Chester,  2  Edw.  Ch.  405  ji  see,  also^ 
Biggs  r.  Kouns,  7  Dana  411. 


OF    BILLS    OF    INTERPLEADER.  417 

if  such  co-defendant  has  also  answered,  an  order  may 
-be  made  for  inquiry  as  to  the  respective  titles.  But  such 
inquiry  cannot  be  directed  whilst  either  answer  is  out- 
standing, because  the  Court  cannot  know  what  claim  such 
answer  will  make.  (J)  If  the  cause  is  carried  to  a  hear- 
ing, a  like  inquiry  or  an  action  will  be  directed  by  the 
decree;  but  the  more  usual  practice  is  to  obtain  the 
direction  at  an  earlier  stage,  (c)  The  decree,  when  made, 
may  terminate  the  suit  as  to  ihe  plaintiff,  though  the  liti- 
gation may  continue  between  the  co-defendants ;  and  in 
that  case  it  may  proceed  without  reviver,  notwithstand- 
ing the  plaintiff's  death.  (^) 

The  only  equity  on  which  the  jurisdiction  of  interplead- 
er rests,  is  the  danger  of  injury  to  the  plaintiff  from  the 
doubtful  titles  of  the  defendants.  He  is  required,  there- 
fore, to  satisfy  the  Court  that  this  equity  exists  by  annex- 
ing to  his  bill  an  affidavit  that  he  does  not  collude  with 
either  claimant ;  and  the  want  of  that  affidavit  is  a  ground 
of  demurrer,  (tf)^  For  the  same  reason  he  should  so  con- 
duct his  proceedings  as  not  to  cause  hardship  and  expense 
to  the  litigant  parties,  beyond  what  his  own  protection 
may  require.  (/)  But  he  will  be  entitled  to  have  his 
costs  properly  incurred  out  of  the  fund  in  dispute,  and 

{b)  Masterman  ».  Lewin,  2  Ph.  182. 

(c)  Townley  ».  Deare,  3  Beav.  213,  216  ;  Crawford  c.  Fisher,  1  Hare  436, 
441. 

{d)  Mitf.  60.     [See  Lyne  v.  Pennell,  1  Sim.  N.  S.  113.] 

(e)  Mitf.  49, 143  ;  Bignold  v.  Aadland,  11  Sim.  23. 

(/)  Sieveking  v.  Behrens,  2  M.  &  C.  581  ;  Crawford  v.  Fisher,  1  Hare 
436. 

'  Gibson  c.  Goldthwaite,  7  Ala.  281;  Atkinson  r.  Manks,  1  Cowen 
C91  ;  Shaw  r.  Coster,  8  Paige  Ch.  339.  See  also,  Marvin  v.  Elwood,  11 
Paige  Ch.  365.  An  objection  to  the  form  of  the  aflBdavit  should  not  be 
made  at  the  time  of  the  motion,  but  on  demurrer  :  Ilamilton  v.  3Iarks,  5 
De  G.  &  Sra.  638. 
27 


418  ADAMS's     DOCTRINE     OF     EQUITY.  x 

the  Court  will  adjudicate  on  their  ultimate  payment,  as 
between  the  co-defendants.  (^)^ 

There  is  also  another  class  of  cases,  somewhat  similar 
to  those  of  interpleader,  originating  in  the  provisions  of 
63  Geo.  3,  c.  169,  by  which  the  responsibility  of  ship- 
owners for  any  damage  done  without  their  fault  to  any 
other  vessel  or  her  cargo,  is  limited  to  the  value  of  their 
*ship,  and  the  freight  she  is  earning  at  the  time 
L  -I  of  the  accident.  By  the  provisions  of  that  act, 
if  several  persons  suffer  such  damage,  and  the  value  of  the 
ship  and  freight  is  not  sufficient  to  pay  them  all,  any  of 
the  owners  may  file  a  bill  in  equity  against  the  claimants 
to  ascertain  such  value,  and  to  obtain  a  rateable  distribu- 
tion thereof,  annexing  to  the  bill  an  affidavit  that  there  is 
no  collusion,  that  all  claimants  are  made  parties,  that  the 
yalue  does  not  exceed  an  amount  specified  in  the  affidavit, 
and  that  the  claims  exceed  such  value.  And  on  such  bill 
and  affidavit  being  filed,  and  payment  made  into  Court  of 
the  specified  amount,  he  may  obtain  an  injunction  against 
proceedings  at  law.(^) 

The  injunction  against  an  act  commenced  or  threatened, 
by  which  an  equity  would  be  infringed,  like  that  against 
suing  in  the  Courts  of  law,  is  often  used  as  an  auxiliary 
process  in  respect  of  ordinary  equities ;  e.g,,  where  a  trustee 
is  enjoined  from  committing  a  breach  of  trust,  a  covenantor 

{g)  Cowtan  v.  Williams,  9  Ves.  107  ;  Campbell  w.  Solomans,  1  S.  &  S. 
462  ;  Jones  v.  Gilham,  Coop.  49  ;  Fenn  r.  Edmonds,  5  Hare  514. 

(A)  53  Geo.  3,  c.  159 ;  Walker  v.  Fletcher,  12  Sim.  420;  1  Ph.  115.  [See 
Act  Cong.  1851,  Ch.  xliii.,  H;  9  Stat,  at  L.  635.] 

^  The  stakeholder  is  entitled  to  costs  out  of  the  fund  :  Canfield  r.  Mor- 
gan, 1  Hopkins  224 ;  Aymer  v.  Gault,  2  Paige  Ch.  284.  The  costs  are 
to  be  paid,  in  the  first  instance,  out  of  the  fund,  but  eventually  by  the 
losing  party :  Thomson  v.  Ebbets,  1  Hopkins  272 ;  Farley  v.  Blood,  10 
Foster  354.  • 


OF    INJUNCTION    AGAINST     TORT.  419 

from  infringing  his  covenant/  or  a  fraudulent  holder  of  a 
negotiable  security  from  indorsing  it  to  a  stranger.  But 
there  is  one  class  of  cases  in  which  the  necessity  for  in- 

^  With  regard  to  injunctions  to  restrain  a  breach  of  covenant,  it  may  not 
be  out  of  place  to  state,  that  the  rule  frequently  referred  to,  based  upon 
Kemble  v.  Kean,  6  Sim.  333,  and  Kimberly  v.  Jennings,  Id.  340,  that 
equity  will  not  restrain  by  injunction  in  cases  of  contract,  where  it  cannot 
enforce  specific  performance,  has  been  modified  to  a  very  considerable 
degree  in  England,  by  the  recent  case  of  Lumley  v.  Wagner,  1  De  G., 
M.  &  G.  604 ;  affirming  s.  c.  5  De  G.  &  Sm.  485.  See  also,  Great  Northern 
R.  R.  Co.  V.  Manchester  R.  R.  Co.,  5  De  G.  &  Sm.  138  ;  Gelston  v.  Sigmund, 
27  Md.  334.  In  the  former  case  it  was  laid  down,  that  where  a  contract 
contains  covenants  to  do  certain  acts,  and  also  to  abstain  from  doing  certain 
acts,  the  Court  has  jurisdiction  to  restrain  the  breach  of  the  negative  cove- 
nants, though  it  has  no  power  to  compel  specific  performance  of  the  affirm- 
ative covenants ;  as  in  the  case  of  an  agreement  by  a  musician  to  sing 
at  a  particular  theatre,  and  not  to  sing  at  any  other,  in  which  case  an 
injunction  may  be  granted  against  the  breach  of  the  latter  portion  of  the 
agreement.  (Kemble  v.  Kean,  overruled.)  But  in  such  cases  the  Court 
will  decline  to  interfere  when  its  jurisdiction  cannot  be  beneficially  exer- 
cised, or  where  its  exercise  would  work  injustice,  as  where  the  considera- 
tion for  the  negative  covenant  of  the  one  party,  is  the  affirmative  covenant 
of  the  other,  which  latter  the  Court  cannot  specifically  enforce  :  Lumley  v. 
Wagner,  supra ;  Stocker  v.  Wedderburne,  26  L.  J.  Ch.  703.  See  also,  De  Mattos 
V.  Gibson,  4  De  G.  &  J.  276  ;  Peto  v.  R.  R.  Co.,  1  Hera.*&  M.  468,  ante  81. 

In  Ilamblin  v.  Dinneford,  2  Edw.  Ch.  b2%  however,  the  case  of  Kemble 
V.  Kean  was  followed,  and  the  Court  refused  to  enjoin  an  actor,  who  had 
contracted  to  perform  at  the  complainant's  theatre  and  no  other,  from  per- 
forming at  another  theatre  in  violation  of  his  agreement.  Equity  will  not 
indirectly  by  injunction  compel  the  specific  performance  of  a  contract  for 
personal  services:  De  Poe  v.  Sohlke,  7  Rob.  (N.  Y.)  280. 

An  injunction  may  be  granted  against  a  distinct  breach  of  covenant, 
though  no  damage  be  shown,  or  even,  indeed,  if  such  be  shown  to  be  posi- 
tively harmless,  or  perhaps  beneficial :  Steward  v.  Winters,  4  Sandf.  Ch. 
587  :  Dickenson  v.  Grand  Junction  Canal  Co.,  15  Beav.  260.  A  Court  has 
jurisdiction  to  restrain  by  injunction  acts  which  the  defendant  is  bound 
by  duty  or  contract  to  abstain  from :  Dietrichsen  v.  Cabburn,  2  Phillips 
52 ;  Beckwith  v.  Howard,  6  R.  I.  1.  But  not  where  there  is  a  complete 
remedy  at  law  :  Pusey  v.  Wright,  31  Penn.  St.  387  ;  Gallagher  v.  Fayette 
Co.  R.  R.,  38  Id.  102.  Coven.ants  not  to  do  a  particular  act  can  be  enforced 
by  injunction,  although  accompanied  by  a  clause  providing  for  stipulated 
damages:  Gillis  v.  Hall,  2  Brewst.  (Pa.)  342. 


420  ADAMS's    DOCTRINE    OF    EQUITY. 

junctive  relief  constitutes  fer  se  an  independent  equity  ; 
^iz.,  that  of  torts  as  a  class  of  civil  wrongs  distinct  from 
cases  of  trust,  of  contract,  and  of  fraud. 

The  principle  of  injunctive  relief  against  a  tort  is,  that 
whenever  damage  is  caused  or  threatened  to  property, 
admitted  or  legally  adjudged  to  be  the  plaintiff's,  by  an 
act  of  the  defendant,  admitted  or  legally  adjudged  to  be 
a  civil  wrong,  and  such  damage  is  not  adequately  reme- 
diable at  law,  the  inadequacy  of  the  remedy  at  law  is  a 
sufficient  equity,  and  will  warrant  an  injunction  against 
the  commission  or  continuance  of  the  wrong.^  And 
though  damages  cannot  be  given  in  equity  for  the  plain- 
tiff's loss,  yet  if  the  defendant  has  made  a  profit,  he  will 
be  decreed  to  account.^ 

The  equity  is  not  confined  in  principle  to  any  particu- 
lar acts,  but  those  in  respect  of  which  it  is  most  com- 
^=9081  ^^^^y  *enforced,  are  five  in  number ;  viz.,  waste, 
destructive  trespass,  nuisance,  infringement  of 
patent  right,  and  infringement  of  copyright.  And,  there- 
fore, the  first  point  which  requires  notice  is  the  nature  of 
these  wro-ngs,  and  the  remedy  given  at  law  to  the  party 
injured. 

Waste  is  substantial  damage  to  the  reversion,  done  by 
one  having  an  estate  of  freehold  or  for  years,  during 
the  continuance  of  the  estate.  The  principal  acts  of 
waste  are  cutting  timber,  opening  new  mines,  convert- 
ing arable  land  into  pasture,  or  pasture  into  arable, 
and   removing  articles  affixed   to  the  freehold.^     With 

'  See,  in  Pennsylvania,  Denny  v.  Branson,  29  Penn.  St.  382. 

''■  See  Duvall  v.  Waters,  1  Bland  576. 

'  Everything  is  VFaste  vyhich  occasions  a  permanent  injury  to  the  inher- 
itance, but  the  situation  of  this  country  requires  an  application  of  the  rule 
different  from  that  which  might  be  proper  ^i  England :  Williams  on  Real 


OF    INJUNCTION    AGAINST    TORT.  421 

respect,  however,  to  waste  of  this  latter  kind,  there  is  a 
special  exception,  in  favor  of  a  tenant  who  has  put  up 

Prop.  23,  note ;  Hill  on  Trustees  590,  4th  Am.  ed. ;  Drown  r.  Smith,  52 
Maine  143;  Keeler  v.  Eastman,  II  Verm.  293.  Where  a  tenant  for  life 
cuts  down  more  timber  than  is  necessary  for  the  enjoyment  of  his  estate, 
and  has  injured  the  remainder,  he  is  guilty  of  waste,  and  will  be  restrained 
from  a  continuance.  See  Johnson  v.  Johnson,  2  Hill  Ch.  277  ;  Livingston 
r.  Reynolds,  26  Wend.  115  ;  Smith  v.  Poyas,  2  Dessaus.  65.  Not  so,  if  it 
does  not  produce  a  lasting  injury  to  the  inheritance:  Shine  v.  Wilcox,  1 
Dev.  &  Batt.  Eq.  631.  Or  if  the  clearing  is  not  unreasonable,  according  to 
the  usage  of  the  country :  Crawley  v.  Timberlake,  2  Ired.  Eq.  460.  And, 
although  it  amounts  to  a  considerable  change  of  woodland  into  arable : 
Alexander  v.  Fisher,  7  Ala.  514.  Firewood  for  the  houses  of  the  tenant 
and  servants  may  be  taken :  Gardiner  v.  Bering,  1  Paige  573 ;  and  see 
McCullough  V.  Irvine,  13  Penn.  St.  438 ;  Morehouse  v.  Cotheal,  2  Zabris- 
kie  521. 

Where  a  farm  is  occupied  and  used  for  mining  purposes,  any  proper  use 
of  it  in  mining  operations  is  not  waste :  Capner  v.  Flemington  Mining  Co., 
2  Green  Ch.  467  :  Findlay  v.  Smith,  6  Munf.  134 ;  Crouch  v.  Puryear,  1 
Kand.  258.  Working  a  gold  mine  so  as  to  produce  irreparable  damage 
may  be  restrained :  McBrayer  v.  Hardin,  7  Ired.  Eq.  I ;  and  so  of  opening 
a  new  mine  of  any  kind  :  Owings  r.  Emery,  1  Gill  260.  A  tenant  for  life 
has  no  right  to  take  clay  or  wood  from  the  premises  for  the  manufacture 
of  bricks,  and  such  acts  are  waste :  Livingston  v.  Reynolds,  2  Hill  157. 
An  injunction  will  issue  to  prevent  the  commission  of  waste  by  one  who 
has  but  a  limited  interest  in  or  possession  of  the  property,  when  the  acts 
about  to  be  done  will  work  a  lasting  injury  to  the  inheritance:  Jones  o. 
Whitehead,  1  Parsons's  Sel.  Eq.  Cas.  304.  See  Denny  v.  Branson,  29 
Penn.  St.  382. 

An  injunction  will  be  granted  to  prevent  the  lessee  from  making  material 
alterations  in  a  dwelling-house,  by  changing  it  into  a  warehouse  or  store, 
which  would  produce  permanent  injury  to  the  building:  Douglass  ».  Wig- 
gins, 1  Johns.  Ch.  435 ;  or  which  he  is  bound  not  to  make  by  covenant 
running  with  the  premises,  or  by  agreement  of  which  he  has  notice :  Parker 
V.  Nightingale,  6  Allen  344;  Piggott  v.  Stratton,  1  De  G.,  F.  &  J.  33.  See 
McCullough  V.  Irvine,  13  Penn.  St.  438.  But  it  is  not  waste  by  the  tenant 
to  make  erections  upon  the  demised  premises,  which  may  be  removed,  leav- 
ing the  property  in  the  state  in  which  it  was  at  the  commencement  of  the 
tenancy,  and  the  materials  of  which,  if  left  on  the  premises,  would  more 
than  compensate  the  lessor  for  the  expense  of  their  removal :  Winship  v. 
Pitts,  3  Paige  Ch.  259. 

An  injunction  may  be  granted,  not  only  against  a  tenant  who  commits 


422  ADAMS's    DOCTRINE    OF    EQUITY. 

ornamental  fixtures,  or  erections  for  the  purposes  of  his 
trade,  (^y 

The  essential  character  of  waste  is,  that  the  party  com- 
mitting it  is  in  rightful  possession.  And,  therefore,  the 
remedy  at  law  is  by  trespass  on  the  case  for  the  injury 
done  to  the  reversion.  Under  the  old  law,  the  place 
wasted  might  also  have  been  recovered  in  the  now  abol- 
ished action  of  waste.  There  are,  however,  no  means  at 
law  of  stopping  the  waste  itself  whilst  the  tenancy  con- 
tinues ;  and  for  that  purpose,  if  the  reversioner's  title  be 
admitted  or  proved  at  law,  the  prohibitive  jurisdiction  of 
equity  has  been  always  exercised.^ 

{i)  2  Steph.  Bl.  261;  3  Id.  593  ;  1  Cruise,  tit.  iii.,  c.  2. 

waste,  but  also  against  one  who  colludes  with  him  :  Rodgers  v.  Rodgers^ 
11  Barb.  S.  C.  595 ;  see  Earl  Talbot  v.  Scott,  27  L.  J.  Ch.  273  ;  4  K.  &  J. 
96.  A  Court  of  equity,  however,  has  no  means  of  interfering  in  the  case 
of  permissive  waste  by  a  tenant  for  life :  Powys  v.  Blagrave,  1  Kay  495. 

^  In  a  case  of  equitable  waste,  the  court  may,  in  addition  to  injunction, 
direct  an  account,^  and  satisfaction:  Rodgers  v.  Rodgers,  11  Barb.  S.  C. 
395. 

^  In  order  to  the  injunction,  there  must  be  no  dispute  as  to  the  title. 
See  Zinc  Co.  v.  Franklenite  Co.,  2  Beas.  350 ;  Bogey  v.  Shute,  4  Jones  Eq. 
174.  In  Nevitt  v.  Gillespie,  1  How.  (Miss.)  108,  it  was  held  that  an  in- 
junction should  never  be  granted  to  stay  waste,  where  it  appears  that  the 
defendant  to  the  bill  is  in  possession,  claiming  and  holding  adversely. 
See  also  Storm  v.  Mann,  4  Johns.  Ch.  21 ;  and  Davenport  v.  Davenport,  7 
Hare  217;  United  States  v.  Parrott,  1  McAll.  Ch.  271.  But  pending  an 
action  to  try  the  title  to  land,  aa  injunction  will  sometimes  be  granted  to 
restrain  the  defendant  from  waste,  especially  where  it  appears  that  he  will 
not  be  able  to  respond  in  damages,  in  case  of  a  recovery  by  the  plaintiff: 
Kinsler  v.  Clarke,  2  Hill  Ch.  617  ;  Shubrick  v.  Guerard,  2  Dessaus.  616  ; 
Duvall  V.  Waters,  1  Bland.  569.  For  other  instances  of  the  granting  of 
the  writ  pending  a  suit  at  law,  see  Ilawley  v.  Clowes,  2  Johns.  Ch.  122  ; 
Camp  V.  Bates,  11  Conn.  51.  In  Earl  Talbot  v.  Hope  Scott,  4  K.  &  J.  96, 
there  will  be  found  a  full  discussion  of  the  English  cases  on  this  subject. 
The  court  will  not  appoint  a  receiver  of  the  rents,  when  a  plaintiff  claims 
only  on  a  legal  title  which  is  denied  by  a  defendant  in  possession ;  nor,  as 
a  general  rule  will  waste,  under  such  circumstances,  be  restrained,  unless 


OF    INJUNCTION    AGAINST    TORT.  423 

In  addition  to  waste,  strictly  so  called,  an  (J  cognisable 
as  such  in  the  Courts  of  law,  there  is  also  a  kind  of  waste 
cognisable  in  equity  alone,  and  called  equitable  waste, 
where  the  owner  of  a  particular  estate,  made  unimpeach- 
able of  waste  at  law,  is  committing  waste  mala  fide,  or  in 
a  manner  not  contemplated  by  the  donor. 

Where  an  estate  for  life  is  comprised  among  the  lim- 
itations of  a  settlement  it  is  not  unusual  to  make  it  "  un- 
impeachable of  waste,"  and  the  object  of  this  is  that  the 
owner  may  be  enabled  to  cut  timber,  open  mines,  and 
avail  himself  of  other  modes  of  profit  which  are  derived 
out  '-'of  the  corpus  of  the  estate,  and  not  from  the  r*oAQ-i 
annual  produce,  and  are  therefore,  in  law,  con- 
it  is  of  a  very  malicious  and  destructive  character.  See  the  notes  to 
Crarth  V.  Cotton,  1  Lead.  Cas.  Eq.  567. 

The  injunction  will  not  be  granted,  where  there  is  an  adequate  remedy 
at  law:  Cutting  v.  Carter,  4  Hen.  &  Munf.  424;  Poindexter  v.  Henderson, 
Walker  176.  Yet  in  some  cases  it  may  be  granted,  notwithstanding  a 
statute  giving  a  remedy  at  law :  Harris  v.  Thomas,  1  Hen.  &  Munf.  18. 
See,  however,  Brown's  Appeal,  66  Penn.  St.  155. 

The  writ  will  not  be  granted,  unless  the  injury  will  probably  be  irre- 
parable, or  not  capable  of  compensation  by  damages  in  a  suit  at  law : 
Atkins  V.  Chilson,  7  Mete.  398  ;  Poindexter  v.  Henderson,  supra  :  Spooner 
t.  McConnell,  1  McLean  338;  Works  v.  Junct.  R.  R.,  5  Id.  425  ;  Clark's 
Appeal,  62  Penn.  St.  447. 

The  court  will  not,  unless  under  very  special  circumstances,  grant  an 
iry unction  to  prevent  the  removal  of  timber  already  cut,  but  only  to  pre- 
y^nt  future  waste  :  Watson  v.  Hunter,  5  Johns.  Ch.  169.  Yet  a  threat  to 
commit  waste  is  suflScient :  Loudon  v.  Warfield,  5  J.  J.  Marsh.  196  ;  Liv- 
ingston ».  Reynolds,  26  Wend.  115,  123. 

The  appropriate  remedy  for  a  mortgagee  against  a  mortgagor  in  posses- 
sion, who  is  impairing  the  security  by  committing  waste,  is  by  bill  in 
Chancery  for  an  injunction:  Cooper  v.  Davis,  15  Conn.  556;  Brady  », 
Waldron,  2  Johns.  Ch.  148  ;  Salmon  v.  Clagett,  3  Bland  125  ;  Capner  v. 
Flemington  Mining  Co.,  2  Green  Ch.  467.  See  on  the  general  subject, 
Sarles  c.  Sarles,  3  Sandf.  Ch.  601 :  Brashear  v.  Maccy,  3  J.  J.  Marsh.  93  ; 
Herr  c.  Bierbower,  3  Md.  Ch.  456  ;  Carlisle  v.  Stephenson,  Id.  499 ;  Bur- 
den V.  Stein,  27  Ala.  104 ;  Bunker  r.  Locke,  15  Wis.  635 ;  Nelson  r.  Pine- 
gar,  30  111.  481. 


424  ADAMS's    DOCTRINE    OF    EQUITY. 

sidered  waste.  So  long  as  he  is  bond  fide  acting  on  this 
authority,  and  endeavoring  to  make  a  profit  by  its  exer- 
cise, the  Court  of  Chancery  cannot  interfere  with  his  dis- 
cretion. If,  however,  he  is  not  acting  bond  fide,  but  is 
maliciously  attempting  to  destroy  the  property,  his  con- 
duct is  a  fraud  on  the  power,  and  will  be  restrained  by 
injunction.  (^)  The  same  restriction  will  be  imposed  if 
he  is  attempting  to  cut  down  timber  which  was  planted 
for  ornament,  or  which  is  evidently  unfit  to  be  cut,  and 
which  was,  therefore,  not  meant  to  be  included  in  his 
authority,  [l) 

Destructive  trespass  is  damage,  amounting  to  the  de- 
struction of  the  estate,  done  by  a  stranger,  whose  posses- 
sion or  entry  is  unlawful.  In  this  case  the  remedy  at 
law,  if  the  trespass  amount  to  an  actual  ouster,  is  by 
ejectment  to  recover  the  land ;  or  if  it  fall  short  of  ouster, 
by  trespass  quare  clausum  fregit,  to  recover  satisfaction 
in  damages  for  the  wrong. 

The  equitable  jurisdiction  over  this  class  of  injuries, 
where  the  damage  is  by  a  mere  wrongdoer  without  color 
of  right,  and  not  by  a  person  having  a  limited  interest, 
was  at  first  doubtful.  The  point  arose  in  a  case  before  Lord 
Thurlow,  where  a  man  having  a  parcel  of  land  on  lease 
began  to  get  coal  there,  and  then  proceeded  to  get  more 
coal  out  of  the  adjoining  parcel,  which  belonged  to  a  dif- 
ferent person.  It  was  held  that  the  former  act,  being 
waste,  would  be  restrained ;  but  that  the  latter,  being  a 
bare  trespass,  could  not  be  interfered  with  by  the  Court 
of  Chancery.     It  was  said,  however,  by  Lord  Eldon,  that 

{h)  Vane  v.  Barnard,  2  Vern.  738. 

[l)  Marquis  of  Downshire  v.  Sandys,  6  Ves.  107;  Day  v.  Merry  16  Id. 
375 ;  Wellesley  v.  Wellesley,  6  Sim,  497 ;  Brydges  v.  Stephens,  6  Mad. 
279  ;  Leeds  v.  Amherst,  2  Ph.  117  ;  [Clement  v.  Wheeler,  5  Foster  361.] 


OF    INJUNCTION    AGAINST    TORT.  425 

Lord  Thiirlow  had  afterwards  changed  his  mind ;  and  it 
is  now  settled  that  an  injunction  will  lie  for  protection  of 
a  title,  admitted  or  proved  at  law,  whenever  the  act  com- 
plained of  is  not  a  mere  ouster  or  temporary  trespass, 
but  is  attended  *with  permanent  results,  destroy-  p^j-o-i  ^-i 
ing  or  materially  altering  the  estate ;  as,  for  ex- 
ample, if  a  man  be  pulling  down  his  neighbor's  house,  fell- 
ing his  timber,  working  his  quarries,  or  the  like.^     If  it 


^  See  Davis  v.  Reed,  14  Md.  152  ;  Merced  Mining  Co.  v.  Fremont,  7  Cal. 
321 .  There  must  be  something  particular  in  the  case,  so  as  to  bring  the 
injunction  under  the  head  of  quieting  possession,  or  preventing  irreparable 
injury:  Livingston  v.  Livingston,  G  Johns.  Ch.  497.  The  inj  ury  threatened 
or  begun  must  not  be  susceptible  of  compensation  in  damages  at  law : 
Smith  V.  Pettirigill,  15  Verm.  82;  Stevens  v.  Beekman,  1  Johns.  Ch.  318  ; 
Hart  V.  The  Mayor  of  Albany,  9  Wend,  571  ;  Jerome  v.  Ross,  7  Johns.  Ch. 
315  ;  Scudder  v.  The  Trenton  Delaware  Falls  Co.,  Saxton  694  ;  Bethuner. 
Wilkins,  8  Ga.  118  ;  George's  Creek  Coal  Co.  v.  Detmold,  1  Md.  Ch.  371 ; 
Catching  v.  Terrell,  10  Ga.  576 ;  Justices  of  Pike  Co.  v.  GriflBn  &  "West 
Point  Plank  Road  Co.,  U  Id.  246  ;  Shipley  v.  Ritter,  7  Md.  408  ;  Mulva- 
ney  v.  Kennedy,  2)  Penn.  St.  44;  Cherry  v.  Stem,  11  Md.  1 ;  Earl  Talbot 
V.  Scott,  4  K.  &  J.  96  ;  De  Veney  i\  Gallagher,  20  N.  J.  Eq.  33.  That  the 
trespasser  is  insolvent  is  not  by  itself  sufficient :  Turnpike,  &c.,  r.  Burnet, 
2  Carter  536.  See,  however,  Hawley  v.  Clowes,  2  Johns.  Ch.  122 ;  Hart  v. 
Mayor  of  Albany,  3  Paige  214  ;  Winnipiseogee  Lake  Co.  v.  Worster,  9 
Foster  449  ;  James  v.  Dixon,  20  Mo.  79.  The  facts  which  show  the  irre- 
parable nature  of  the  injury  must  be  set  out  in  the  bill,  a  mere  general 
averment  is  not  enough :  Chesapeake  &  Ohio  Co.  v.  Young,  3  Md.  480. 
Where  the  alleged  trespass  was  committed  more  than  a  year  before  the  ap- 
plication for  an  injunction,  and  there  was  no  allegation  of  a  threatened 
renewal  of  the  trespass,  held,  the  injunction  could  not  be  granted :  Southard 
V.  Morris  Canal,  Saxton  518.  See  also,  Duval  v.  Waters,  1  Bland  569 : 
Amelung  v.  Seekamp,  9  Gill  &  J.  468. 

Equity  will  not  restrain,  by  injunction,  the  working  of  amine,  or  other 
trespass,  until  the  title,  if  disputed,  has  been  setiled  at  law,  except  in  ex- 
treme cases  :  Irvin  v.  Davidson,  3  Ired.  Eq.  311  ;  Lining  v.  Geddes,  1  Mc- 
Cord  Ch.  304 ;  Powers  v.  Ileery,  Charl.  R.  M.  523  ;  West  v.  Walker,  2 
Green  Ch.  279.  See  Elliott  v.  North  Eastern  R.  R.  Co.,  10  H.  L.  Cas. 
333. 

So  on  a  question  between  two  bodies,  each  claiming  to  be  the  trustees  of 
a  religious  society,  and  a  refusal  by  one  to  permit  the  other  to  use  the  bury- 


426  ADAMS's    DOCTRINE    OF     EQUITY. 

be  a  mere  ouster  or  temporary  trespass,  the  recovery  of 
the  land  by  an  action  of  ejectment,  or  of  pecuniary  dam- 
ages by  an  action  of  trespass,  are  sufficient  remedies,  and 
an  injunction  will  not  lie.  {my 

Nuisances  ar.e  of  two  kinds;  Public  and  Private.  A 
public  nuisance  consists  in  the  doing  anything  to  the  an- 
noyance of  all  the  King's  subjects,  e.  (/.,  the  obstructing  a 
highway  or  public  river,  or  the  carrying  on  of  offensive  or. 
dangerous  trades,  or  the  neglecting  to  do  anything  which 
the  common  good  requires,  e.  g.,  the  omission  to  repair  a 
highway  or  public  bridge.  A  private  nuisance  is  an  act 
done  unaccompanied  by  an  act  of  trespass,  which  causes 
a  substantial  prejudice  of  the  hereditaments,  corporeal  or 
incorporeal,  of  another;  e.  g.,  diverting  a  watercourse,  so 
as  to  interrupt  the  right  of  another  person,  that  it  should 
run  undisturbed  to  his  meadow  or  mill ;  obstructing  an- 
cient windows,  so  that  the  owner  cannot  enjoy  the  light 
so  freely  as  before ;  or  disturbing  a  franchise,  by  setting 
up,  without  license  from  the  Crown,  a  fair,  market, 
or  ferry,  so  near  to  a  more  ancient  one,  as  to  diminish 
its  custom.  And  a  public  nuisance  may  also  be  a  private 
one,  if  there  be  special  damage  to  an  individual;  aS 
where,  by  reason  of  an  obstruction  to  the  highway,  he 
meets  with  an  accident,  or  is   compelled  to  travel  by  a 

(m)  Thomas  v.  Oakley,  18  Ves.  184 ;  Goulson  v.  White,  3  Atk.  21 ;  Ridg- 
way  V.  Roberts,  4  Hare  106,  116. 

ing  ground,  a  forcible  entry  by  the  latter  for  that  purpose  on  several  occa- 
sions, was  held  not  to  be  ground  for  injunction  :  Miller  v.  English,  2  Ilalst. 
Ch.  304. 

^  See  a  full  discussion  of  this  subject  in  Earl  Talbot  v.  Scott,  27  L,  J. 
Ch.  273  ;  4  K.  &  J.  96. 

An  injunction  may  be  granted  in  favor  of  a  married  woman  to  restrain 
a  party  from  cutting  down  trees  under  an  authority  from  her  husband  as 
trustee  of  her  separate  estate :  Thomas  v.  James,  32  Ala.  726 ;  and  see 
Smith  V.  The  Bank,  4  Jon.  Eq.  303. 


OF    INJUNCTION    AGAINST    TORT.  427 

longer  or  more  difficult  way;  or  where  an  offensive  or 
dangerous  trade  is  carried  on  or  so  near  his  premises  as 
to  do  them  special  prejudice,  (w)^ 

The  remedy  at  law  for  nuisance  is  by  indictment  in 
respect  of  public  nuisances,  and  by  action  in  respect  of 
private  nuisances  or  of  the  private  injuries  resulting  from 
public  ones.  And  the  party  aggrieved  may  also  abate  or 
remove  the  nuisance  by  his  own  act,  so  as  he  commit  no 
riot  in  doing  it,  nor  occasion,  in  the  case  of  *a  r*oi  i-i 
private  nuisance,  any  unnecessary  damage,  (o) 
The  remedies,  however,  at  law  can  at  the  utmost  only 
abate  or  afford  compensation  for,  an  existing  nuisance,  but 
are  ineffectual  to  restrain  or  prevent  such  as  are  threatened 
or  in  progress;  and  for  this  reason  there  is  a  jurisdiction 
in  equity  to  enjoin,  if  the  fact  of  nuisance  be  admitted  or 
established  at  law,  whenever  the  nature  of  the  injury  is 
such  that  it  cannot  be  adequately  compensated  by 
damages,  or  will  occasion  a  constantly  recurring  griev- 
ance, (p)^ 

(n)  2  Steph.  BI.   10-16 :  3  Id.  499-502 ;  4  Id.  295.     [See  Hepburn  v. 
Lordan,  2  Hem.  &  M.  345.] 
•  (o)  3  Steph.  Bl.  301,  503. 

(p)  Mitf.  144;  Attorney-General  ».  Nichol,  16  Ves.  338;  Attorney- 
General  V.  Cleaver,  18  Id.  211  ;  Attorney-General  r.  Forbes,  2  M.  &  C.  123  ; 
Crowder  v.  Tipkler,  19  Ves.  617 ;  Earl  of  Ripon  v.  Hobart,  3  M.  &  K.  169 ; 
Hudson  i\  Maddison,  12  Sim.  416  ;  Blakemore  v.  Glamorgan  Canal,  1  M. 
&  K.  154,  181. 

^  The  student  will  find  an  excellent  summary  of  the  rules  regulating  the 
relief  afforded  by  equity  in  cases  of  private  nuisances,  in  the  opinion  of 
Mr.  Justice  Swayne  in  Parker  v.  Winnipiseogee  Lake  Cotton  &  Woollen 
Co.,  2  Black  545.  The  term  "  public  nuisance"  applies  only  to  something 
occasioned  by  acts  done  in  violation  of  law :  Hinchman  v.  Patterson,  &c., 
R.  R.,  2  Green  (X.  J.)  75.  A  work  which  is  authorized  by  law  cannot  be 
a  nuisance :  Ibid. 

"  In  England  by  stat.  21  &  22  Vict,  c,  27,  damages  may  be  assessed  in 
cases  of  nuisance  in  such  manner  as  the  court  may  think  proper.     The 


428  ADAMS's    DOCTRINE    OF    EQUITY. 

Injunctions  for  the  restraint  of  trespass  and  nuisance ^ 
are  often  issued   against  railway  companies,  and  other 

right  of  the  complainant  ought  generally  to  be  admitted  or  established  at 
law,  before  the  granting  of  an  injunction:  White  v.  Booth,  7  Verm.  131 ; 
Shields  v.  Arndt,  3  Green  Ch.  234 ;  Caldwell  v.  Knott,  10  Yerg.  209 ;  Hart 
V.  Mayor  of  Albany,  3  Paige  213  ;  Reid  v.  Gilford,  6  Johns.  Ch.  19 ;  Bid- 
die  V.  Ash,  2  Ashmead  211  ;  Porter  v.  Witham,  17  Maine  292  ;  Arnold  v. 
Klepper,  24  Mo.  273 ;  Coe  v.  The  Winnipiseogee  Manuf.  Co.,  37  N.  H. 
254  ;  Rhea  v.  Forsyth,  37  Penri.  St.  507 ;  Frizzle  v.  Patrick,  6  Jones  Eq. 
(N.  C.)  354  ;  Eastman  v.  Amoskeag  Co.,  47  N.  H.  71.  But  when  the  right 
has  once  been  established,  an  alteration  in  the  nuisance  complained  of 
will  not  render  a  fresh  action  necessary.  Chancery  can  judge  whether 
the  nuisance  has  been  increased  or  diminished :  Gas  Company  v.  Broad- 
bent,  7  II.  L.  Cas.  600.  And  in  Holsman  v.  Boiling  Spring  Co.,  1  McCart. 
335,  a  perpetual  injunction  was  granted  without  any  trial  at  law.  Yet  he 
will  not  be  first  required  to  establish  his  right  at  law,  unless  it  is  doubtful 
and  in  dispute  :  White  v.  Forbes,  ^\Jalk.  Ch.  112;  Duncan  v.  Hayes,  22  N.  J. 
Eq.  25.  In  the  case  of  great  injury  to  a  prescriptive  right,  the  injunction 
may  be  granted  without  first  sending  the  plaintifi"  to  law  to  establish  his 
title :  Gardner  v.  Newburgh,  2  Johns.  Ch.  162 ;  Robeson  v.  Pittenger,  1 
Green  Ch.  57.  The  fact  that  the  complainant  has  not  established  his  title 
at  law  is  no  ground  for  demurrer  to  the  bill :  Soltau  v.  De  Held,  2  Sim. 
N.  S.  133.  It  is  sufficient  if  damages  have  been  once  recovered  at  law,  no 
matter  how  small  an  extent,  if  the  legal  title  has  been  clearly  established : 
Rochdale  Canal  Co.  v.  King,  2  Sim.  N.  S.  78.  The  Court,  however,  is  not 
always  bound  by  the  mere  fact  that  damages,  even  if  substantial,  have 
been  recovered,  and  the  legal  title  is  established.  It  will  consider  whether 
the  complainant  be  entitled  to  the  equitable  relief;  and  moreover  will  not 
grant  it  where  an  injunction  could  not  restore  the  party  to  his  former 
position.  Thus  an  injunction  will  be  refused  against  a  manufacturer  for 
polluting  the  water  of  a  stream  by  dye-stuflFs,  &c.,  in  favor  of  another 
manufacturer,  when  the  real  damage  to  the  stream  and  to  its  use  by  the 
latter,  is  produced  by  causes  over  which  the  Court  has  no  control,  as  by 
the  gro.wth  of  population  on  the  banks  of  the  stream,  so  that  the  granting 
the  injunction  would  not  be  of  real  benefit;  though  the  complainant  has 
recovered  damages  at  law:  Wood  v.  Sutclifi"e,  2  Sim.  N.  S.  163. 

The  fact  of  nuisance  ought  to  be  clear,  for  the  Court  will  not  interfere 
by  injunction  to  restrain  an  erection  not  in  itself  noxious,  though  it  may, 
according  to  circumstances,  prove  so,  until  a  trial  of  the  right  at  law  ; 
except  where  an  action  could  not  be  framed  to  meet  the  question,  when 
the  Court  may  direct  an  issue.  But  if  the  injury  apprehended  is  great, 
and  the  danger  imminent,  an  injunction  will  not  be  refused  on  the  ground 


OF    INJUNCTION    AGAINST    TORT.  429 

bodies  of  a  similar  nature,  where  the  act  complained  of  is 
done  in  alleged  pursuance  of  a  Parliamentary  power.    In 

that  there  is  a  possibility  that  the  injury  anticipated  may  not  result  from 
the  erection  complained  of:  Mohawk  Bridge  Co.  v.  Utica  and  Schenectady 
Railroad  Co.,  6  Paige  Ch.  554.  On  the  other  hand,  the  mere  tendency  of 
an  erection  to  produce  the  result  complained  of,  has  never  been  considered 
sufficient  to  warrant  the  restraining  process  of  a  Court  of  equity  :  Gwin  v. 
Melmoth,  1  Freem.  Ch.  505 ;  Ellison  v.  The  Commissioners,  5  Jones  Eq. 
57  ;  Ross  v.  Butler,  4  Green  (N.  J.)  294. 

To  authorize  the  Court's  interference  by  injunction,  there  should  appear 
imminent  danger  of  great  and  irreparable  damage,  and  not  of  that  for 
which  an  action  at  law  would  furnish  full  indemnity :  Wingfield  v.  Cren- 
shaw,  4   Hen.    &   Munf.   474;   City  of  Rochester   v.   Curtiss,    1    Clarke 

336  ;  Bradsher  v.  Lea,  3  Ired.  Eq.  301  ;  Spooner  v.  McConnell,  1  McLean 

337  ;  Webb  v.  Portland  Manuf,  Co.,  3  Sumner  189  ;  Croton  Turnpike  v. 
Ryder,  1  Johns.  Ch.  611  ;  Wall  v.  Cloud,  3  Humph.  181 ;  Vaughn  v.  Law, 

1  Id.  123 ;  Bemis  v.  Upham,  13  Pick,  169 ;  Vanwinkle  v.  Curtis,  2  Green 
Ch~:  422 ;  Smith  v.  Cummings,  2  Pars.  Eq.  92 ;  Wallace  v.  McVey.  6  Ind. 
540  ;  Clark  v.  White,  2  Swan  540 ;  Webber  v.  Gage,  39  N.  H.  186  ;  The- 
baut  V.  Canova,  11  Florida  143;  Richards's  App.,  57  Penn.  St.  105. 

An  injunction  may  be  granted  to  restrain  a  public  nuisance  at  the  suit 
of  a  private  person,  who  suffers  a  special  injury  thereby  :  Corning  v.  Low- 
erre,  6  Johns.  Ch.  439  ;  Milhau  v.  Sharp,  27  N.  Y.  611.  See  as  to  this 
point,  Rosser  v.  Randolph,  7  Porter  238  ;  Mayor  of  Georgetown  v.  Alex- 
andria Canal  Co.,  12  Peters  91  ;  Bigelow  v.  Hartford  Bridge  Co.,  14  Conn. 
565  ;  Attorney-General  v.  Utica  Ins.  Co.,  2  Johns.  Ch,  379,  380  ;  Delaware 
and  Maryland  R.  R.  Co.  v.  Stump,  8  Gill  &  J.  479  ;  Biddle  v.  Ash,  2  Ash- 
mead  211 ;  Rowe  V.  Granite  Bridge  Co.,  21  Pick.  344  ;  Soltau  v.  De  Held, 

2  Sim.  N.  S.  133  ;  Smith  v.  Lockwood,  13  Barb.  S.  C.  209  ;  Peck  v.  Elder, 

3  Sandf.  S.  C.  126  ;  Frink  v.  Lawrence,  20  Conn.  117  ;  Hartshorn  v.  South 
Reading,  3  Allen  501 ;  Allen  v.  The  Board  of  Freeholders,  2  Beas.  74 ; 
Zabriskie  r.  The  Jersey  City  R.  R.  Co.,  2  Id.  314;  Att.-Gen.  v.  Sheffield 
Gas  Consumers  Co.,  3  De  G.,  M.  &  G.  304;  Smith  v.  Bangs,  15  111.  399  ; 
Hamilton  v^  Whetridge,  11  Md.  128  ;  Mississippi  &  Missouri  R.  R.  Co.  v. 
Ward,  2  Black  485.  See  Roosevelt  v.  Draper,  23  N.  Y.  323  ;  Buck  Mt.  Co. 
V.  Lehigh  Co.,  50  Penn.  St.  99  ;  People  v.  Third  Avenue  R.  R.  Co.,  45 
Barb.  (N.  Y.)  63  ;  Columbus  v.  Jaques,  30  Ga.  506  ;  City  of  Phila.  v. 
Collins,  68  Penn.  St.  106. 

In  Catlin  v.  Valentine,  9  Paige  575,  and  Brady  v.  Weeks,  3  Barb.  S.  C. 
157,  it  was  held  that  to  constitute  a  nuisance,  it  is  not  necessary  that  a 
trade  or  business  complained  of,  should  endanger  the  health  of  the  neigh- 
borhood.    It  is  sufficient  if  it  produces  that  which  is  offensive  to  the  senses, 


430  ADAMS's     DOCTRINE     OF     EQUITY. 

these  cases,  if  the  company  are  acting  hond  fide  within 
their  authority,  there  is  no  equity  to  interfere,  although 
the  Court  may  think  that  the  power  was  unadvisedly  con- 
ferred, or  that  the  company  are  not  exercising  a  wise 
discretion.  If,  however,  their  conduct  is  not  bond  fide, 
there  is  jurisdiction  to  enjoin  ;  as,  for  example,  if  having 
authority  to  take  land  for  a  particular  purpose,  they  pre- 
tend to  take  it  for  that  purpose,  but  want  it  for  an- 
other, {q)  And  if  they  are  acting  beyond  their  authority, 
there  is  the  same  jurisdiction  as  in  ordinary  cases  ;  as, 
for  example,  if  having  authority  to  do  a  certain  thing, 
upon  certain  terms,  and  in  a  certain  manner,  they  are  at^ 
tempting  to  do  some  other  thing,  or  to  do  it  on  some  other 

{q)  Webb  v.  Manchester  &  Leeds  Railway,  4  M.  &  C.  116;  [see  Comm. 
V.  Pittsburgh  &  Conn.  R.  R.,  24  Penn.  St.  139.] 

and  which  renders  the  enjoyment  of  life  and  property  uncomfortable. 
See  also,  Peck  v.  Elder,  3  Sandf.  S.  C.  126  ;  Howard  v.  Lee,  Id.  181 ;  Smith 
V.  Cummings,  2  Pars.  Eq.  92 ;  Cleveland  v.  Citizens'  Gas  Light  Co.,  20  N. 
J.  Eq.  201.  The  rule  on  this  subject  was  laid  down  with  great  clearness 
in  Walker  v.  Selfe,  4  De  G.  &  Sm.  315  ;  and  see  Wolcott  i\  Melick,  3  Stock. 
204 ;  Crump  v.  Lambert,  L.  R.  3  Eq.  409. 

See  also  generally  as  to  injunction  to  restrain  nuisance,  Soltau  v.  De 
Held,  2  Sim.  N.  S.  133  ;  Bostock  v.  North  Stafford  R.  R.  Co.,  5  De  G.  &  Sm. 
584;  Auburn  Co.  v.  Douglass,  12  Barb.  553  ;  Harrell  r.  Ellsworth,  17  Ala. 
576 ;  Gilbert  v.  Mickle,  4  Sandf.  Ch.  357 ;  Cunningham  v.  The  Rome  R. 
R.  Co.,  27  Ga.  499  ;  Wood  v.  Sutcliffe,  2  Sim.  (N.  S.)  163  ;  Hole  v.  Barlow, 
4  C.  B.  N.  S.  (93  E.  C.  L.  R.)  334;  St.^  Helen's  Smelting  Co.  v.  Tipping, 
11  H.  L.  Cas.  642 ;  Crossley  v.  Lightowler,  L.  R.  2  Ch.  Ap.  478 ;  Att.-Gen. 
V.  Bradford  Canal,  L.  R.  2  Eq.  71 ;  Robson  v.  Whittingham,  L.  R.  1  Ch. 
Ap.  442. 

A  state  may  obtain  an  injunction  in  the  Supreme  Court  of  the  United 
States  to  restrain  a  company  incorporated  by  another  state  from  bridging 
a  navigable  river,  within  the  limits  of  the  latter  state,  which  runs  through 
the  former,  so  as  to  obstruct  the  navigation :  Pennsylvania  v.  Wheeling 
Bridge  Co.,  13  How.  U.  S.  518  ;  see  Mississippi  &  Missouri  R.  R.  Co.  v. 
Ward,  2  Black  485. 

A  corporation  owning  a  toll  bridge  may  maintain  a  bill  in  equity  as  for 
a  nuisance,  to  restrain  a  city  from  unlawfully  laying  it  out  as  a  highway : 
Central  Bridge  v.  Lowell,  4  Gray  (Mass.)  474.  See  also  Green  v.  Oakes, 
17  111.  249 ;  Walker  v.  Shepardson,  2  Wis.  384. 


OF    INJUNCTION    AGAINST    TORT.  431 

terms,  or  in  some  other  manner.  Such,  for  instance, 
would  be  the  case,  if  their  authority  were  to  cross  a  man's 
land  coming  to  it  in  a  particular  direction,  and  they 
claimed  to  alter  the  direction,  and,  nevertheless  to  take 
the  land.  And  perhaps  the  same  result  would  follow,  if 
they  were  to  make  an  important  alteration  in  the  termini 
of  their  line,  or  if  the  sum  which  *they  had  power  r*2i2'l 
to  raise  were  palpably  insufl&cient  to  complete 
their  works  ;  for,  in  both  these  cases,  they  would  not  be 
using  their  powers  for  the  purpose  for  which  they  were 
conferred.  (?•) 

The  same  principles  are  equally  applicable  to  all  other 
persons  who  have  been  authorized  by  the  Legislature  to 
do  specified  acts,  which  without  such  authority  they  would 
be  incompetent  to  do.  So  long  as  they  are  acting  within 
their  prescribed  limits,  the  Court  of  Chancery  has  no  con- 
trol ;  but  if  they  exceed  those  limits,  if  they  are  assuming 
to  do  that  which  the  Legislature  has  not  said  they  may 
do,  then,  in  so  far  as  the  excess  is  concerned,  they  have 
no  authority;  and,  if  their  acts  be  of  a  nature  to  warrant 
an  injunction,  it  will  be  granted  against  them.(s) 

Patent  right  is  the  exclusive  liberty  conferred  by  letters- 
patent  from  the  Crown  on  an  inventor,  or  his  alienee,  of 
making  articles  according  to  his  invention.  (^)^ 

(r)  Agar  v.  Regent's  Canal  Company,  Coop.  77 ;  Salmon  v.  Randall,  3 
M.  &  C.  439;  Blakemore  r.  Glamorgan  Canal,  1  M.  &  K.  154;  Lee  v. 
Milner,  2  Y.  &  C.  611. 

[s]  Attorney -General  v.  Forkes,  2  M.  &  C.  123  ;  Frevin  t.  Lewis,  4  M.  & 
C.  249:  Birley  v.  Chorlton,  3  Beav.  499;  Dawson' p.  Paver,  5  Hare  415; 
[Winch  V.  Birkenhead,  &c.,  R.  R.  Co.,  16  Jur.  1035 ;  Beman  r.  Rufford,  1 
Sim.  N.  S.  550.] 

[t]  2  Steph.  Bl.  86  ;  5  Jarm.  Byth.,  tit.  Patent ;  Godson  on  Patent  and 
Copyright,  bk.  ii. 

^  The  American  cases  and  statutes  on  this  subject  will  be  found  collected 
in  Curtis  on  Patents. 

The  patent,  of  itself,  and  in  the  absence  of  treaty  stipulation,  creates  no 


432  ADAMS's    DOCTRINE    OP    EQUITY. 

The  powers  of  the  Crown  to  grant  such  letters-patent, 
both  as  regards  the  parties  to  whom  they  may  be  granted, 
and  the  periods  to  which  they  must  be  limited,  are  regu- 
lated by  statute; (w)  and  the  qualities  essential  to  sustain 
a  patent  are  foreign  to  this  Treatise.  But  the  patent 
right  of  an  inventor  is  personal  property,  and  assignable 
by  writing  under  hand  and  seal;  and  if  it  be  infringed, 
the  inventor  or  his  alienee  has  a  remedy  at  law  by  an 
action  for  damages.  And  iif  consideration  of  the  ineffi- 
ciency of  that  remedy,  he  may  also,  if  the  validity  of  his 
patent  and  the  fact  of  infringement  are  admitted  or  estab- 
lished at  law,  have  a  remedy  in  equity  by  injunction  and 
account.  The  right  originates  in  the  character  of  the 
r*91  VI  P^t®^^  ^^  private  "^property,  and  not  in  the  mere 
exclusive  privilege.  And  therefore,  a  patent  to 
keep  a  theatre,  which  is  a  mere  privilege  granted  to  the 
party,  will  give  no  right  to  enjoin  other  parties,  who  are 
infringing  the  law  by  keeping  theatres  without  license,  (t^) 

The  validity  of  the  patent  itself,  and  the  fact  of  infringe- 
ment, are  matters  which,  if  doubtful,  must  be  determined 
at  law. 

Copyright  is  the  exclusive  liberty  conferred,  either 
by   common  law  or   by  statute,   on   an   author   or   his 

(m)  21  Ja.  1,  c.  3,  8.  1 ;  5  &  6  Wm.  4,  c.  83 ;  2  &  3  Vict.  c.  67. 
[v)  Calcraft  v.  West,  2  Jones  &  Lat.  128. 

exclusive  right  in  a  foreign  country :  yet  it  has  been  recently  held  that  an 
English  patent  would  be  enforced  by  injunction  against  a  foreigner  bringing 
a  patented  article  into  England,  to  the  same  extent  as  against  English 
subjects:  Caldwell  v.  Van  Vlissengen,  16  Jur.  115;  9  Hare  429.  This  was 
the  case  of  a  Dutch  steam  vessel,  using  an  English  patented  screw  propeller 
without  license,  coming  into  England.  The  same  point  arose  in  Brown  v. 
Duchosne,  2  Curtis  C.  C.  371,  aflBrmed  19  Howard  183,  and  received  a  con- 
trary decision  under  the  Patent  Laws  of  the  United  States. 


OF    INJUNCTION    AGAINST    TORT.  433 

alienee,  of  printing  or  otherwise  multiplying  copies  of  his 
work  {zvy 

The  property  of  an  author  in  his  work  before  publica- 
tion is  absolute  and  perpetual; (a;) ^  nor  is  it  lost  by  send- 
ing the  manuscript  as  a  letter  to  a  correspondent;  (^)^  nor 
by  reading  it  orally  as  a  public  lecture.  But  where  the 
lecture  has  not  been  first  committed  to  writing,  it  has 
been  doubted  whether  there  can  be  property  in  the  senti- 
ments and  language;  although  a  pupil  may  be  restrained, 
on  the  basis  of  an  implied  contract,  from  publishing  it  for 
profit,  (z) 

Lectures  are  now  protected  by  5  &  6  Wm.  4,  c.  65, 
giving  to  the  author  and  his  alienee  the  sole  right  of  first 
printing  and  publishing,  and,  after  publication,  the  ordi- 
nary term  of  copyright.  But  this  statute  gives  no  exclu- 
sive right  of  oral  delivery;  it  requires  that  notice  of  the 

(«?)  2  Steph.  Bl.  94;  5  Jarm.Byth.,  tit.  Copyright;  Godson  on  Patent 
and  Copywright,  bk.  iii. 

[x]  Miller  v.  Taylor,  4  Burr.  2303  ;  Donaldson  v.  Becket,  2  B.  P.  C.  129; 
Tonson  v.  Walker,  3  Sw.  672,  680. 

(y)  Gee  v.  Pritchard,  2  Sw.  402 ;  Palin  v.  Gathercole,  1  Coll.  565. 

(z)  Abernethy  v.  Hutchinson,  3  Law  J.  0.  S.  Ch.  209 ;  Miller  v.  Tay- 
lor, 4  Burr.  2303  ;  Donaldson  v.  Beckett,  2  B.  P.  C.  129. 

^  See  Curtis  on  Copywright. 

The  power  given  to  Congress  to  pass  copyright  laws  extends  only  to  such 
as  "  promote  the  progress  of  science  and  useful  arts :"  Martinette  v.  Ma- 
guire,  1  Abb.  (U.  S.)  356. 

'  This  subject  will  be  found  very  fully  considered  in  the  case  of  Prince 
Albert  v.  Strange,  2  De  G.  &  Sm.  652 ;  aff 'd  1  Macn.  &  G.  25.  There  a 
workman,  who  had  been  intrusted  with  some  etchings  on  copper,  for  the 
purpose  of  working  oflF  the  engravings,  which  were  not  intended  for  publi- 
cation, was  restrained  from  publishing  a  descriptive  catalogue  of  the  etch- 
ings and  compelled  to  destroy  certain  impressions  which  he  had  taken  for 
himself. 

'  See  Woolsey  v.  Judd,  4  Duer  379  ;  Wetmore  v.  Scovill,  3  Edw.  Ch 
515  ;  Hoyt  V.  Mackenzie,  3  Barb.  Ch.  320  ;  Bartlett».  Crittenden,  5  McLean 
32. 

28 


434  ADAMS's    DOCTRINE    OF    EQUITY. 

intended  lectures  shall  have  been  given  to  two  justices 
before  delivery;  it  does  not  extend  to  lectures  delivered 
in  a  university,  public  school,  or  college,  or  under  any 
gift,  endowment^  or  foundation;  and  it  contains  a  saving 
of  the  common  law  in  respect  to  all  lectures  which  it  does 
not  include. 

r*9141  *The  property  of  an  author  in  his  work  after 
publication  is  also  regulated  by  statute  ;(«)  and 
of  late  years  the  rights  of  authors  have  been  considerably 
amended,  improved,  and  extended.  (5)  Protection  is  not 
only  afforded  to  printed  books,  but  also  to  engravings,  (c) 
sculptures,  (c?)  dramatic  compositions,  (e)  and  registered 
designs, (/)  and  also  under  certain  limitations,  to  works 
published  abroad.  (^) 

In  addition  to  the  copyright  conferred  by  statute,  there 
is  also  a  prerogative  copyright  in  the  Crown  of  printing 
at  the  royal  press  all  Acts  of  Parliament,  Proclamations, 
and  Orders  in  Council,  and  Liturgies,  and  Service-books 
of  the  Church,  and  the  authorized  translation  of  the  Bible. 
The  same  privileges  extend  to  the  grantees  of  the  Crown, 
viz.,  to  the  Queen's  printer,  and  to  the  Universities  of 
Oxford  and  Cambridge.  A  similar  privilege  of  printing 
almanacs  was  formerly  claimed,  but  was  adjudged  to  be 
void.  The  Universities  of  Oxford  and  Cambridge,  and 
the  Colleges  of  Eton,  Westminster,  and  Winchester  also 
enjoy,  by  Act  of  Parliament,  a  perpetual  copyright  in 
aU  books  given  or  bequeathed  to  them,  so  long  as  such 

(a)  54  Ga.  3,  c.  156. 
(6)  5  &  6  Vict.  c.  45. 

(c)  8  Geo.  2,  c.  13  ;  7  Geo.  3,  c.  38,  57 ;  6  &  7  Wm.  4,  c.  59. 

(d)  38  Geo.  3,  c.  71 ;  54  Geo.  3,  c.  56. 

(e)  3  &  4  Wm.  4,  c.  15 ;  5  &  6  Vict.  c.  45. 
(/)  5i  &  6  Vict.  c.  100 ;  6  &  7  Vict.  c.  65. 
(^)  7  &  8  Vict.  c.  12. 


OF    INJUNCTION     AGAINST    TORT.  435 

books  shall  be  published  at  their  own  presses  and  for 
their  own  benefit.  (A) 

The  question  as  to  what  will  constitute  an  infringement 
of   copyright  is   sometimes  attended  with  considerable 
doubt.     It  is  declared    by   the   late   statute  that  it  is 
equally  piracy,  either  to  print  the  copyright  work  within 
the  British  dominions  for  sale  or  exportation,  or  to  im- 
port for  sale  or  hire  copies  so  printed,  or  copies  printed 
abroad;  or  to  sell  or  publish,  or  expose  or  possess  for  sale 
or  hire,  copies  known  to  have  been  so  printed  or  imported, 
or  to  cause  any  such  Sprinting,  importation,  sale,    r-^^n  ^n 
publication,  or   exposure  for    sale    or   hire. (2)^ 
But  in  the  case  of  partial  imitation  or  copying,  and  of 
piracy  from  compilations  of  pre-existing  matter,  it  is 
sometimes  difficult  to  determine  whether  the  latter  work 
is,  or  is  not,  a  copy  of  its  predecessor.     The  doctrine  on 
these  points  appears  to  be  :  1.  That  in  regard  to  original 
works,  it  is  no  piracy  to  extract  passages  for  the  purpose 
of  bond  fide  criticism  or   quotation,  or  for  that  of  com- 
bining them   with  new  matter  so  as  to  constitute  a  new 
original  work,  or  even  to  make  a  fair  abridgment  of  the 
work  himself.     But  it  is  otherwise  if  the  criticism,  &c., 
be  merely  colorable.  (A:)     2.  That  in  regard  to  compila- 
tions of  pre-existing  matter,   such  as  maps  and   road- 
books, the  true  subject  of  copyright  is  the  selection  and 

(A)  2  Steph.  Bl.  p.  98. 

(i)  5  &  6  Vict.  c.  45,  ss.  15  and  17. 

{k)  Campbell  r.  Scott,  11  Sim.  31 ;  Bell  v.  "Whitehead,  8  L.  J.  Ch.  141 ; 
Wilkins  r.  Aikin,  17  Ves.  427  ;  Saunders  ».  Smith,  3  Myl.  &  Cr.  711  ; 
Bramwell  v.  Ilalcomb,  Id.  737;  D'Almaine  v.  Boosey,  1  Y.  &  C.  288. 

^  After  much  discussion  in  England,  it  has  been  recently  held  in  the 
House  of  Lords,  that  a  foreigner,  not  residing  there,  can  have  no  copyright 
under  the  statutes,  nor  does  his  English  assignee  before  publication  stand 
in  any  better  position :  Jeflferyes  v.  Purday,  L.  J.  Exch.  350. 


436  ADAMs's    DOCTRINE    OF    EQUITY. 

arrangement.  The  materials  for  the  Avork  are  open  to 
all ;  any  man  may  avail  himself  of  them,  and  may  com- 
pile a  work,  which  will  probably  be  similar  to  the  first, 
and  may  perhaps  be  identical  with  it.  But  he  must 
create  the  work  by  his  own  labor  and  skill,  and  must  not 
copy  the  result  of  his  predecessor's.  And  if,  on  compari- 
son of  the  two  works,  he  appears  to  have  done  so,  his 
own  work  will  be  declared  a  piracy. (/)^ 

The  copyright  of  an  author,  like  the  patent  right  of  an 
inventor,  is  personal  property,  and  transferable  by  assign- 
ment.^ Such  assignment  may  be  made,  in  cases  falling 
within  the  Copyright  Amendment  Act,  by  entry  in  the 
registry  at  Stationers'  Hall ;  but  if  not  so  made,  it  must 
be  by  an  instrument  in  writing,  though  not  necessarily 
under  seal.(m)^ 

{[)  Longman  W.Winchester,  16  Yes.  269;  Lewis  ».  Fullarton,  2  Beav.  6. 
(m)  Power  v.  Walker,  3  M.  &  S.  7  ;  Rundell  v.  Murray,  Jac.  311,  315 ; 
5  &6  Vict.  c.  45,  s.  13. 

^  A  work  in  part  a  hondjide  abridgment  of  another,  and  in  part  mere  com- 
pilation without  original  labor,  may  be  restrained  as  to  the  latter  :  Story's 
Ex'rs.  V.  Holcombe,  4  McLean  306.  A  translation  is  not  a  violation  of  a 
copyright :  Stowe  v.  Thomas,  2  Am.  Law  Reg.  210 ;  2  Wall.  Jr.  547.  See 
Kelly  V.  Morris,  L.  R.  1  Eq.  697  ;  Hotten  v.  Arthur,  1  Hem.  &  M.  603.  It 
is  no  infringement  of  a  copyright  to  represent  a  play  dramatized  from  a 
novel  written  by  another  author,  but  it  is  an  infringement  to  print  and 
publish  a  play  so  constructed :  Tinsley  v.  Lacy,  1  Hem.  &  M,  747.  See 
also,  Reade  v^  Lacy,  1  Johns.  &  Hem.  524. 

*  But  property  in  a  work,  is  distinct  from  property  in  the  means  of  its 
reproduction.  Thus  a  sale  on  execution  of  the  engraved  plate  of  a  map 
does  not  pass  thie  copyright  in  the  map,  and  the  purchaser  may  be  re- 
strained by  injunction  from  the  multiplication  of  copies  thereof:  Stephens 
».  Cady,  14  How.  U..  S.  528. 

'  Where  an  author  is  employed  by  the  proprietor  of  a  periodical,  to  write 
for  it  articles  for  a  certain  compensation,  but  without  any  mention  of  the 
copyright,  it  is  to  be  inferred  that  the  copyright  was  to  belong  to  such  pro- 
prietor :  Sweet  v.  Benning,  16  Com.  Bench  459. 

So  it  was  held  to  be  piracy,  for  a  proprietor  of  an  analytical  digest  of 


OF    INJUNCTION    AGAINST    TORT.  437 

If  the  right  be  infringed,  the  remedy  of  the  author  or 
his  alienee  at  law  is  by  an  action  of  trespass  on  the  case 
for  damages ;  and  by  an  action  of  detinue  or  trover  for 
the  *pirated  copies,  or  their  value,  {n)  He  may  p^^  i  at 
also  sue  in  equity  for  an  injunction  and  account 
if  the  right  and  infringement  are  admitted  or  established 
at  law.  It  will  be  observed,  that  the  jurisdiction  to  enjoin 
in  equity  is  expressly  for  the  protection  of  copyright  as 
property,  and  not  for  the  prevention  of  improper  publi- 
cations. There  is,  therefore,  no  jurisdiction  to  enjoin 
against  a  wicked  or  libellous  work,  merely  on  the  ground 
of  its  mischievous  character ;  and,  on  the  other  hand,  if 
a  work  alleged  to  be  copyright  be  tainted  by  immorality, 
libel,  or  fraud,  it  is  not  acknowledged  as  property  at  law; 
and  in  that  case,  or  even  if  it  be  of  a  doubtful  tendency, 
the  Court  of  Chancery  will  not  interfere,  (o) 

The  existence  of  the  right  itself,  and  the  fact  of  the 
infringement,  are  matters  which,  if  doubtful,  must  be 
determined  at  law. 

The  jurisdiction  to  restrain  infringement  of  patent  and 
copyright  is  based  on  the  exclusive  property  which  the 
complainant  has.  There  is  also  a  jurisdiction,  of  a  not 
very  dissimilar  character,  to  enjoin  against  the  use  of  a 
secret  of  trade  which  has  been  fraudulently  obtained,  and 
to  enjoin  against  damaging  the  plaintiff's  business  by 
representing  a  spurious  article  to  be  his. 

If  a  person,  having  made  a  discovery,  does  not  choose 

(n)  5  &  6  Vict.  c.  45,  s.  23. 

(o)  Gee  V.  Pritchard,  2  Sw.  402 ;  Du  Bost  v.  Beresford,  2  Camp.  N.  P. 
C.  511  ;  Wright  r.  Tallis,  1  Man.,  Gr.  &  Sc.  893;  4  Law  J.  C.  P.  283; 
Southey  v.  Sherwood,  2  Meriv^  438  ;  Lawrence  v.  Smith,  Jac.  471. 

equity,  common  law,  and  other  cases,  to  copy  verbatim  the  head  notes  of 
cases  from  reports,  the  copyright  of  which  was  in  the  plaintiffs,  without 
their  consent:  Id. 


438  ADAMS's    DOCTRINE    OF    EQUITY.    ^ 

to  protect  it  by  a  patent,  and  thus  to  limit  his  enjoyment 
of  it  within  the  statutory  period,  he  has  no  exclusive 
right  to  the  invention ;  and  if  another  person  can  discover 
the  secret,  there  is  no  equity  to  restrain  him  from  using 
it.  It  must,  however,  be  discovered  by  legitimate  means ; 
and  therefore  if  the  party  acquiring  it  has  resorted  to  a 
breach  of  trust  or  a  fraud,  he  will  be  restrained  from  avail- 
ing himself  of  what  he  has  learnt,  (p) 
r*21  71  *"^^'  again,  a  person  has  adopted  a  particular 
device,  with  a  view  to  denoting  a  particular  arti- 
cle or  manufacture  as  his  own,  he  does  not  necessarily 
acquire  a  copyright  in  such  device,  and  cannot  restrain 
on  that  ground,  its  user  by  another  man.  But  he  is 
entitled,  on  the  ordinary  principles  of  law,  to  insist  that 
no  other  person  shall  injure  his  business  by  rei:)resenting 
a  Spurious  article  to  be  his,  although  the  genuine  article 
may  be  one  to  which  he  has  no  exclusive  right.  And 
therefore,  if  such  a  representation  be  made,  either  by 
direct  misstatement  or  by  imitation  of  his  device,  he  may 
recover  damages  at  law  for  the  injury  to  his  business,  and 
pari  ratione  may  have  an  injunction  in  equity.  (5-)^ 

{p)  Williams  v.  Williams,  3  Meriv.  157  ;  Youatt  v.  Winyard,  1  J.  &  W. 
394  ;  [Morrison  v.  Moat,  9  Hare  266  ;  affirmed  16  Jur.  321  ;  21  L.  J.  Ch. 
248.] 

(g)  Sykes  v.  Sykes,  3  B.  &  C.  541 ;  Bloefield  v.  Payne,  4  B.  &  Ad.  410 ; 
Crutwell  V.  Lye,  17  Ves.  336  •,  Motley  v.  Downman,  3  M,  &  C.  1 ;  Milling- 
ton  V.  Fox,  3  M.  &  C.  338  ;  Perry  v.  Truefitt,  6  Beav.  66  ;  Croft  v.  Day,  7 
Id.  84 ;  -Spottiswoode  v.  Clark,  2  Ph.  154 ;  Clark  v.  Freeman,  17  L.  J.  Ch. 
142;  11  Beav.  112. 

'  On  the  subject  of  injunction  to  restrain  the  use  of  trade-m.irks,  the  fol- 
lowing recent  decisions  may  be  referred  to:  Coffeen  v.  Brunton,  4  McLean 
516;  Rogers  w.  Nowill,  3  De  G.,  M.  &  G.  614;  17  Jur.  109;  Burgess  v. 
Burgess,  3  De  G.,  M.  &  G.  896 ;  17  Jur.  292 ;  Flavell  v.  Harrison,  10  Hare 
467  ;  17  Jur.  368  ;  Edleston  v.  Vick,  18  Id.  7 ;  Holloway  v.  Holloway,  13 
Beav.  209 ;  Taylor  v.  Taylor,  2  Eq.  290  ;  23  L.  J.  Ch.  255 ;  Woollam  v. 


OP    INJUNCTION    AGAINST    TORT.  439 

Having  now  examined  the  chief  objects  of  the  injunc- 
tive equity,  we  must,  in  conclusion,  notice  the  chief  inci- 
dents of  the  equity  itself.  These  incidents  are  three  in 
number.  The  equity  attaches  only  on  an  admitted  or 
legally  adjudged  right  in  the  plaintiff,  admitted  or  legally 
adjudged  to  be  infringed  by  the  defendant ;  it  prohibits 
continuance  as  well  as  commission  of  a  wrong;  and  it  ex- 
tends to  an  account  of  the  defendant's  profit. 

First,  it  attaches  only  on  an  admitted  or  legally  ad- 
judged right  in  the  plaintiff,  admitted  or  legally  adjudged 
to  be  infringed  by  the  defendant.  The  existence  of  the 
right,  and  the  fact  of  its  infringement,  must  be  tried,  if 
disputed,  in  a  Court  of  law.  And  therefore,  if  the  plain- 
tiff resorts  to  equity  in  the  first  instance,  he  should  forth- 
with move  for  an  interlocutory  injunction  to  protect  his 
alleged  right  until  decree,  and  thus  give  an  opportunity  of 
directing  a  trial  at  law,  so  that  when  the  cause  comes  on 

Ratcliffe,  1  Hem.  &  M.  259;  Batty  v.  Hill,  Id.  264;  Braham  c.  Bustard, 
Id.  447 ;  Farina  v.  Silverlock,  4  K.  &  J.  650 ;  Welch  v.  Knott,  Id.  747 ; 
Edelsten  v.  Edelsten,  1  De  G.,  J.  &  Sm.  185;  Leather  Cloth  Co.  ».  The 
American  Leather  Cloth  Co.,  11  H.  L.  Cas.  523;  Boardman  r.  Meriden 
Brittania  Co.,  35  Conn.  40i ;  McCartney  v.  Garnhart,  45  Mo.  593 ;  Palmer 
V.  Harris,  00  Penn.  St.  156  ;  Filley  v.  Fassett,  44  Mo.  168 ;  Rowley  r.  Hough- 
ton, 2  Brewst.  (Pa.)  303 ;  Dixon  Crucible  Co.  v.  Guggenheim,  Id.  321 ; 
Bradley  v.  Norton,  33  Conn.  157 ;  Smith  r.  Woodruff,  48  Barb.  (N.  Y.) 
438  ;  Congress  Spring  Co.  v.  High  Rock  Spring  Co.,  45  N.  Y.  291 ;  Canal 
Co.  V.  Clark,  13  Wall.  (U.  S.)  311  ;  Howard  v.  Henriques,  3  Sandf.  S.  C. 
725,  in  which  the  name  of  a  hotel  was  treated  in  the  same  light  as  a 
trade-mark.  See  also  Coffeen  v.  Brunto,  5  McLean  256 ;  Ames  v.  King,  2 
Gray  (Mass.)  379 ;  Samuel  r.  Berger,  24  Barb.  (N.  Y.)  163.  No  property 
can  be  acquired  in  marks  or  devices  which  indicate  merely  the  nature, 
kind  or  quality  of  articles,  and  not  the  goods  or  property,  or  particular 
place  of  business  :  Stokes  v.  Landgraff,  17  Barb.  (X.  Y.)  608 ;  Sherwood 
r.  Andrews,  5  Am.  Law  Reg.  (N.  S.)  588;  Ferguson  v.  Davol  Slills,  2 
Brewst.  (Pa.)  314. 

In  ca.se  of  patent  medicines,  &c.,  see  Heath  v.  Wright,  3  Wall-  Jr.  141 ; 
but  see  Smith  v.  Woodruff,  supra. 


440  ADAMS's    DOCTRINE    OF    EQUITY. 

for  hearing  it  may  be  ready  for  immediate  adjudication. 
When  the  motion  for  an  interlocutory  injunction  is  made, 
the  Court,  having  regard  to  the  extent  of  prhnd  facte  title 
r*9i  Q-i  shown,  the  probability  *of  mischief  to  the  pro- 
perty, and  the  balance  of  inconvenience  on  either 
side,  will  either  grant  the  injunction,  accompanied  by  a 
provision  for  putting  the  legal  right  into  an  immediate 
course  of  trial ;  or  will  send  the  parties  to  law,  directing 
the  defendant  to  keep  an  account ;  or  will  merely  retain 
the  bill,  with  liberty  for  the  plaintiff  to  proceed  at  law.  (r) 
Secondly,  the  equity  extends  to  prohibit  continuance, 
as  well  as  commission.  Where  an  interlocutory  injunc- 
tion is  granted  against  the  continuance  of  a  nuisance,  the 
abatement  of  which  cannot  be  ordered  on  motion  in  direct 
terms,  it  becomes  what  is  called  a  mandatory  injunction, 
I.  e.,  an  injunction  so  framed  that  it  restrains  the  defend- 
ant from  permitting  his  previous  act  to  operate,  and,  there- 
fore, virtually  compels  him  to  undo  it.  Injunctions  of 
this  class  have  been  granted  in  various  instances;  e.  (/., 
against  continuing  the  removal  of  the  stop-gate  of  a  canal ; 
against  permitting  stables  to  remain  which  had  been  im- 
properly built  in  an  ornamental  garden ;  and  against  per- 
mitting a  railway  tunnel  to  continue,  which  had  the  effect 
of  completely  destroying  the  road.(s)^ 

(r)  Hill  V.  Thompson,  3  Meriv.  622;  Kay  v.  Marshall,  1  M.  &  C.  373 ; 
Ansdell  v.  Ansdell,  4  M.  &  C.  449  ;  Bacon  v.  Jones,  1  Beav.  382  ;  4  M.  &  C. 
433  ;  CoUard  v.  Allison,  4  M.  &  C.  487  ;  Hilton  v.  Granville,  Cr.  &  P.  283  ; 
Harman  v.  Jones,  Id.  299 ;  Stevens  ».  Keating,  2  Ph.  333. 

(s)  Kobinson  v.  Byron,  1  B.  C.  C.  558  ;  Lane  v.  Newdigate,  10  Ves.  194  ; 
Blakemore  v.  Glamorgan  Canal,  1  M.  &  K.  154,  183  ;  Rankin  v.  Huskisson, 
4  Sim.  13  ;  Spencer  v.  Birmingham  Railway,  8  Id.  193,  198  ;  1  Railway  Ca. 
159  ;  Attorney-General  v.  Manchester  and  Leeds  Railway,  Id.  436  ;  Hooper 
».  Brodrick,  11  Sim.  48 ;  Earl  of  Mexborough  v.  Bower,  7  Beav.  127,  133; 
Great  North  of  England  Junction  Railway  v.  Clarence  Railway,  1  Coll. 
507. 

^  But  such  an  injunction  is  not  granted,  except  in  rare  and  peculiar 


OF    INJUNCTION    AGAINST    TORT.  441 

Thirdly,  the  equity  extends  to  an  account  of  the  de- 
fendant's profits.  The  grant  of  an  injunction  necessarily 
presupposes  that  the  plaintiff  has  sustained  a  loss  by  the 
defendant's  act,  and  that  the  defendant  has  probably  de- 
rived a  profit,  which  may  or  may  not,  according  to  circum- 
stances, be  coextensive  with  the  plaintiff's  loss.  The  strict 
right  of  the  plaintiff,  so  far  as  the  past  wrong  is  concerned, 
is  to  *a  recompense  in  damages  for  his  own  loss,  p^Qi  qt 
irrespectively  of  the  defendant's  profit. 

A  claim,  however,  for  such  damages  would  involve  the 
necessity  of  proceeding  in  two  Courts  at  once,  in  equity 
for  an  injunction,  and  at  law  for  damages;  and  therefore 
the  Court  of  Chancery,  having  jurisdiction  for  the  pur- 
pose of  the  injunction,  will  prevent  that  circuity  and  ex- 
pense; and  although  it  cannot  decree  damages  for  the 
plaintiff's  loss,  will  substitute  an  account  of  the  defend- 
ant's profits.  (/)  The  equity  for  the  account  is  strictly  an 
incident  to  the  injunction,  and  therefore,  if  an  injunction 
is  refused,  an  account  cannot  be  given;  but  the  plaintiff 
must  resort  to  a  Court  of  law.  (w) 

{t)  Crossley  ».  Derby  Gas  Gompany,  3  Myl.  &  Cr.  428;  Bacon  v.  Spot- 
tiswoode,  1  Beav.  382,  385 ;  Colburn  v.  Simms,  2  Hare  543,  560. 
(u)  Baily  ».  Taylor,  1  R.  &  M.  73. 

cases :  Bradbury  v.  Manchester,  &c.,  R.  R.  Co.,  5  De  G.  &  Sm.  624  ;  Wash- 
ington University  v.  Green,  1  Md.  Ch.  97.  On  final  hearing,  however, 
the  decree  may,  of  course,  require  the  abatement  of  a  nuisance  :  Lam  born 
r.  The  Covington  Co.,  2  Md.  Ch.  409.  In  Durell  ».  Pritchard,  13  W.  R. 
981,  the  Master  of  the  Rolls,  relying  on  Deere  v.  Guest,  1  Myl.  &  Cr.  516, 
laid  down  the  rule  that  a  mandatory  injunction  would  not  be  granted 
where  the  act  complained  of  was  completed  before  the  filing  of  the  bill. 
But  this  ruling  was  reversed  by  the  Court  of  Appeals :  L.  R.  1  Ch.  Ap. 
249. 


[*220]  *BOOK  III.  ^ 

OF  THE  JURISDICTION  OF  THE  COURTS  OF  EQUITY  IN  CASES 
IN  WHICH  THE  COURTS  OF  ORDINARY  JURISDICTION  CAN- 
NOT ADMINISTER  A  RIGHT. 


CHAPTER    I. 

OF  ACCOUNT. 

The  equities  under  the  second  head  of  our  division, 
viz.,  where  the  Courts  of  ordinary  jurisdiction  cannot 
administer  a  right,  are  those  for  investigation  of  accounts, 
for  severance  of  co-tenancies,  and  other  analogous  relief, 
for  winding  up  partnerships  and  administering  testamen- 
tary assets,  for  adjusting  liabilities  under  a  common  charge, 
and  for  protection  of  the  persons  and  estates  of  infants 
and  lunatics.^ 

^  In  matters  of  account,  Courts  of  equity  possess  a  concurrent  jurisdic- 
tion in  most,  if  not  in  all  cases,  with  courts  of  law :  see  Mitchell  v.  Manu- 
facturing Co.,  2  Story  648 ;  Post  v.  Kimberly,  9  Johns.  470 ;  Jones  v. 
Bullock,  2  Dev.  Ch.  368 ;  Nelson  v.  Harris,  1  Yerg.  360 ;  Bruce  v.  Burdet, 
1  J.  J.  Marsh.  80 ;  Wilson  v.  Mallett,  4  Sandf.  S.  C.  112 ;  Seymour  v. 
Long  Dock  Co.,  20  N.  J.  Eq.  396 ;  in  all  cases  in  which  an  action  of  ac- 
count would  be  a  proper  remedy  at  law :  Fowle  v.  Lawrason,  5  Peters  495 ; 
and  in  some  cases  in  which  assumpsit,  or  other  action  at  law,  would  lie  : 
Hickman  v.  Stout,  2  Leigh  6;  Hay  v.  Marshall,  3  Humph.  623.  Especi- 
ally where  equity  has  acquired  cognisance  of  a  suit  for  the  purpose  of  dis- 


OF    ACCOTMT.  443 

One  important  instance  of  the  jurisdiction  over  accounts 
occurs  in  the  case  of  trustee  and  cestui  que  trust,  where 
the  cestui  que  trust  demands  an  account  of  moneys  re- 
ceived under  the  trust.  The  equity  of  this  particular 
case  is  included  under  the  general  equity  for  enforcement 
of  trusts,  («)  but  a  corresponding  one  exists  as  against  an 
agent  or  steward,  or  a  person  employed  in  any  similar 
character,  who  is  bound  by  his  office  to  render  regular 
accounts.  If  this  duty  is  performed,  and  the  accounts 
are  regularly  rendered,  his  employer  can  recover  the 
balance  at  law  on  the  evidence  of  the  accounts  them- 
selves, and  a  suit  *in  equity  is  not  required.  If  rH:ooi-[ 
it  is  neglected,  he  can  recover  damages  at  law  for 
the  neglect,  (J)  and  will  also  have  an  equity,  arising  out 

[a)  Supra,  Trusts.  (6)  Smith  Merc.  Law  96. 

covery :  Handley  v.  Fitzhugh,  1  A.  K.  Marshall  24 ;  see,  also,  Pearl  v. 
Nashville,  10  Yerg.  179.  And  a  bill  for  discovery  and  account  will  some- 
times lie  upon  a  purely  legal  claim :  see  Pleasants  v.  Glasscock,  1  Sm.  & 
Mar.  Ch,  23.  So,  also,  where  a  multiplicity  of  suits  will  be  avoided,  or 
the  remedy  at  law  is  not  full  and  adequate,  or  fraud,  accident,  or  mistake 
is  connected  with  the  subject:  McLaren  v.  Steapp,  1  Kelly  376;  Cum- 
mins V.  White,  4  Blackf.  356.  And  between  partners  and  the  assignees 
of  their  copartners :  Pendleton  v.  Wambersie,  4  Cranch  73  ;  Collins  v. 
Dickinson,  1  Haywood  240.  In  Ludlow  v.  Simond,  2  C.  C.  E.  1,  it  was 
held  that  chancery  has  jurisdiction  of  all  matters  of  account,  though  no 
discovery  is  required,  and  a  bill  for  account  against  principal  and  surety 
may  be  sustained,  although  the  account  has  been  stated  as  to  the  princi- 
pal ;  see,  in  addition,  on  this  subject,  Randolph  v.  Kinney,  3  Rand.  394  ; 
Ship  V.  Jameson,  6  Litt.  190 ;  Sturtevant  v.  Goode,  5  Leigh  83 ;  McKim 
V.  Odom,  3  Fairfield  94 ;  Reybold  v.  Dodd,  1  Harring.  402 ;  Dunwidie  ». 
Kerley,  6  J.  J.  Marsh.  501.  It  seems  that  mere  delay  of  a  defendant  at 
law  coming  into  equity  in  matters  of  account,  forms  no  reason  for  refusing 
relief  where  the  nature  of  the  account  in  such  that  a  court  of  law  cannot 
deal  with  it :  Southeast  R,  R.  Co.  v.  Brogden,  3  Macn.  «&  G.  8.  See  the 
remarks  in  this  case  as  to  the  difference  between  the  cases  where  equity 
assumes  original  jurisdiction  in  a  matter  of  account,  and  those  where  ii 
withdraws  a  matter  of  account  from  a  court  of  law. 


444  ADAMS's    DOCTRINE    OF    EQUITY. 

of  the  agent's  failure  in  duty,  to  have  the  accounts  taken 
in  the  Court  of  Chancery,  where  the  evidence  may  be 
supplied  by  discovery  on  oath.(c)  It  will  be  observed, 
that  this  equity  does  not  originate  in  the  mere  want  of 
discovery,  which  will  not,  as  we  have  already  seen,  con- 
fer a  jurisdiction  for  relief  ;(^)  but  in  the  additional  in- 
gredient that  such  want  has  been  caused  by  the  defend- 
ant's fault.  It  is  otherwise  in  the  case  of  a  mere  stranger. 
He  is  compellable  to  answer  on  oath  to  the  best  of  his 
information,  but  there  is  no  original  duty  to  possess  in- 
formation, and,  therefore,  no  equity  on  the  ground  of  its 
absence,  to  withdraw  his  rights  from  the  Court  of  ordi- 
nary jurisdiction. 

It  obviously  follows  from  this  doctrine,  that  a  bill  for 
an  account  by  an  agent  against  his  principal  will  not 
generally  lie ;  for  it  is  the  agent's  duty,  and  not  the  prin- 
cipal's, to  keep  the  account.^  But  this  rule  is  subject  to 
a  special  exception  in  favor  of  a  steward,  the  nature  of 
whose  employment  is  such,  that  money  is  often  paid  in 
confidence  without  vouchers,  embracing  a  variety  of  ac- 
counts with  the  tenants,  so  that  it  would  be  impossible  to 
do  him  justice  without  an  account  in  equity.  (^)^ 

(c)  Mackenzie  ».  Johnston,  4  Mad.  373  ;  Massey  v.  Banner,  4  Id.  413  ; 
Anon.   2  Hare  289,  n. ;  Bowles  v.  On,  1  Y.  &  C.  464. 
{d)  Supra,  Discovery, 
(e)  Dinwiddie  v.  Bailey,  6  Ves.  136;  Allison  v.  Herring,  9  Sim.  583. 

•  An  account  will  lie  on  behalf  of  an  agent  against  his  principal  who 
has  received  certain  sums  upon  which  the  former  was  entitled  to  a  com- 
mission :  Smith  r.  Leveaux,  1  Hem.  &  M.  123, 

*  An  agent  or  factor  may  file  a  bill  against  his  principal  for  an  account : 
Ludlow  V.  Simond,  2  C.  C.  E.  1,  39,  53 ;  Kerr  v.  Steamboat  Co.,  1  Cheves, 
2d  part,  189.  See  Wilson  v.  Mallet,  4  Sandf.  S.  C.  112.  But  in  general, 
a  bill  will  not  lie  by  a  factor  against  his  principal,  for  discovery  and  ac- 
count, merely  in  aid  of  a  suit  at  law  ;  nor  will  a  bill  for  relief,  where  the 


OF    ACCOUNT.  445 

In  taking  the  account  against  an  agent,  he  will  be 
charged  with  the  moneys  of  his  principal  which  he  has 
actually  received,  and,  if  a  special  case  of  negligence  be 

bill  is  dependent  on  the  right  to  discovery  :  Wilson  v.  Mallett,  4  Sandf.  S. 
C.  112.     See  Dunning  v.  Stearns,  9  Barb.  S.  C.  903. 

In  the  recent  case  of  Pennell  c.  Deffell,  4  De  G.,  M.  &  G.  372,  the  fol- 
lowing rules  were  established  as  governing  the  practice  of  the  Court  of 
Chancery  in  the  analogous  case  of  trusts.  Where  a  trustee  pays  trust 
money  into  a  bank  to  his  credit,  the  account  being  a  simple  account  with 
himself,  not  marked  or  distinguished  in  any  other  manner,  the  debt  thus 
constituted  from  the  bank  to  him,  belongs,  so  long  as  it  remains  due, 
specifically  to  the  trust,  as  between  the  cestui  que  trust  on  the  one  side, 
and  the  trustee  or  his  representatives  on  the  other  ;  and  this  state  of 
things  is  not  varied  by  the  circumstance  of  the  bank  holding  also  for  the 
trustee,  or  owing  to  him  money  in  every  sense  his  own.  And  where  the 
account  consists  of  a  series  of  items  in  respect  of  moneys  paid  in,  and  drawn 
out  by  general  checks  by  the  trustee,  the  mode  of  ascertaining  what  part 
of  the  balance  is  trust  property,  and  what  part  of  the  trustee's  ownmoney 
is  to  hold  (as  in  Clayton's  Case,  1  Mer.  572),  that  each  check  drawn  out 
by  the  trustee  is  to  be  applied  in  payment  of  the  earlier  items  of  the  op- 
posite side  of  the  account,  i.  e.,  in  diminution  of  the  trust  fund  pro  ianto, 
if  those  items  arise  from  trust  moneys  paid  into  the  account,  or  of  the  cus- 
tomers own  moneys  ^ro  ianto,  if  they  arise  from  moneys  paid  in  on  his 
own  private  personal  account.  See  also,  Frith  p.  Cartland,  34  L.  J.  Ch. 
301. 

AVhere  an  agent  is  intrusted  with  money  to  be  disbursed,  his  principal 
may  sustain  a  bill  against  him  for  an  account  of  his  agency,  and  in  some 
instances  although  no  discovery  is  sought.  See  Kerr  v.  Steamboat  Co.,  ut 
supra  ;  Hale  v.  Hale,  4  Humph.  183  ;  Halstead  v.  Rabb,  8  Porter  63  ;  Ma- 
son V.  Man,  3  Dessaus.  116.  If  an  agent  does  not,  within  a  reasonable  time, 
apply  money  to  the  purposes  for  which  it  is  sent  to  him,  he  will  be  charge- 
able with  interest:  Harrisson  r.  Long,  4  Dessaus.  110.  See  on  the  subject 
of  interest.  Hill  on  Trustees,  4th  Am.  ed.  568,  and  notes.  But  an  agent 
having  no  authority  to  invest,  is  not  liable  for  interest,  until  a  demand 
made  by  his  principal :  Rowland  v.  Martindale,  Bailey  Eq.  226  ;  Lever  ». 
Lever,  2  Hill  Ch.  158.  So  an  agent  will  be  charged  with  moneys  which, 
but  for  his  default,  he  might  have  received :  Short  v.  Skipwith,  1  Brock. 
103  :  see  also.  Prentice  v.  Buxton,  3  B.  Monr.  35.  If  an  agent  mixes  the 
property  of  his  principal  with  his  own,  he  will  be  obliged  to  show  clearly 
which  part  of  the  property  belongs  to  himself;  and  so  far  as  he  is  unable 
to  do  this,  it  is  treated  as  the  property  of  his  principal :  Kelly  ».  Greenleaf, 
3  Story  105,  106. 


446  ADAMS's    DOCTRINE    OF    EQUITY. 

made  out,  •with  such  moneys  also  as  but  for  his  wilful 
default  he  might  have  received.  In  the  absence  of  a 
special  case  an  inquiry  as  to  wilful  default  will  not  be 
granted  against  a  trustee  or  agent,  although  it  is  other- 
wise in  the  case  of  a  mortgagee. (/)  But  if  the  agent 
neglect  to  account,  he  will  be  charged  with  interest  on 
moneys  improperly  ^retained;  if  he  has  unduly 
used  his  principal's  moneys  for  the  purpose  of 
profit  to  himself,  he  will  be  charged  with  the  profits  which 
he  has  made;  and  if,  by  his  neglect,  his  own  property  has 
become  mixed  up  with  that  of  his  principal,  so  that  they 
cannot  readily  be  distinguished,  the  burden  of  separation 
will  be  thrown  on  him,  and  the  whole  will  be  treated  as 
belonging  to  the  principal,  until  the  agent  shows  clearly 
what  portion  is  his  own.(y) 

Another  instance  of  the  jurisdiction  is  in  the  case  of 
mutual  accounts,  where  items  exist  on  both  sides,  not 
constituting  mere  matters  of  set  off,  but  forming  a  con- 
nected transaction,  and  requiring  an  account  to  ascertain 
the  balance,  more  complicated  than  can  practically  be 
taken  at  law.  (A)  The  mere  fact  that  such  complicated 
mutual  accounts  exist  is  a  sufficient  equity  to  sustain  a 
bill.  But  it  is  otherwise  with  respect  to  mere  matters  of 
set-off;  for  right  of  set-off  can  be  effectually  tried  at  law, 
and  can  only  be  transferred  to  Chancery  by  some  special 
equity.^ 

(/)  Pelham  v.  Hilder,  1  N.  C.  C.  3. 

[g)  Pearse  v.  Green,  1  J.  &  W.  135  ;  Lupton  ».  White,  15  Ves.  432,  441. 

(h)  Kennington  v.  Houghton,  2  N,  C.  C.  620 ;  Ranger  v.  Great  Western 
Railway,  1  Railway  Ca.  1 ;  Taff  Vale  Company  v.  Nixon,  1  House  of 
Lords  Reports  111. 

'  In  matters  of  account  which  are  mutual  and  complicated,  Courts  of 
equity  have  complete  jurisdiction :  Hay  v.  Marshall,  3  Humph.  623  ;  The 
Governor  v.  McEwen,  5  Id.  241 ;  Power  v.  Reeder,  9  Dana  9  ;  Hickman  v. 


OF    ACCOUNT.  447 

The  right  of  set-off  is  that  right  which  exists  between 
two  persons,  each  of  whom,  under  an  independent  con- 
tract, owes  an  ascertained  amount  to  the  other,  to  set-off 
their  respective  debts  by  way  of  mutuaP  deduction,  so 
that  in  any  action  brought  for  the  larger  debt,  the  resi- 
due only  after  such  deduction  shall  be  recovered.  At  the 
common  law  there  was  no  such  right  j   but  if  the  party 

Stout,  2  Leigh  6  ;  Long  v.  Majestre,  1  John.  Ch.  305 ;  Hunter's  Ex'rs.  ». 
Spotswood,  1  Wash.  146  ;  Cummins  v.  White,  4  Blackf.  356 ;  Dubourg  de 
St.  Colombe's  Heirs  v.  The  United  States,  7  Peters  625 ;  Kirkman  v.  Vanlier, 
7  Ala.  217.  So  also  in  cases  of  insolvency :  Blake  v.  Langdon,  19  Verm. 
485  ;  "White  v.  Wiggins,  32  Ala,  424 ;  though  the  rule  on  this  subject  is 
not,  perhaps,  satisfactorily  settled :  see  American  note  to  Rose  v.  Hart,  2 
Smith's  Lead.  Cas.  374  (6th  Am.  ed.),  where  the  cases  are  discussed. 
But  to  sustain  a  bill  for  an  account,  there  must  be  mutual  demands,  not 
merely  payments  by  way  of  set-off, — there  must  be  a  series  of  transactions 
on  one  side,  and  of  payments  on  the  other.  See  Bowen  v.  Johnson,  12  Ga. 
9 ;  Porter  v.  Spencer,  2  John.  Ch.  169  ;  Pearl  v.  Nashville,  10  Yerg.  179  ; 
McLin  V.  McNamara,  2  Dev.  &  Bat.  Eq.  83 ;  Wilson  v.  Mallett,  4  Sandf. 
Ch.  112;  Pointup  v.  Mitchell,  17  Ga.  558  ;  Phillips  v  Phillips,  9  Hare  471 ; 
Cullum  V.  Bloodgood,  15  Ala.  34  ;  Padwick  v.  Hurst,  18  Jur.  763  ;  18  Beav. 
575  •,  see  Burlingame  r.  Hobbs,  12  Gray  (Mass.)  367,  and  Haywood  v. 
Hutchins,  65  N.  C.  574.  Complication  of  accounts,  where  the  receipts  are 
all  on  one  side,  if  it  ever  alone  constitutes  suflEicient  ground  for  interven- 
tion of  a  Court  of  equity,  must  show  a  very  strong  case  of  entanglement : 
Padwick  v.  Stanley,  9  Hare  627 ;  see  Taylor  v.  Tompkins,  2  Heisk. 
(Tenn.)  89. 

Upon  demurrer,  a  general  allegation  that  accounts  are  of  a  complicated 
nature  is  not  suflBcient,  unless  supported  by  specific  allegation  of  facts 
showing  their  complex  character:  Padwick  v.  Hurst,  18  Jur.  763  ;  18  Beav. 
575.     See  Lesley  v.  Rosson,  39  Mississippi  368. 

A  bill  will  not  lie,  even  against  an  agent,  as  to  a  single  transaction  not 
tainted  by  fraud,  and  where  there  is  a  legal  remedy  :  Navulshaw  v.  Brown- 
rigg,  1  Sim.  N.  S.  573  ;  2  De  G.,  M.  &  G.  441 ;  Barry  v.  Stevens,  31  Beav. 
258^. 

^  The  consideration  that  the  nominal  parties  to  a  contract  are  not 
strictly  mutual  is  no  objection  to  set-off,  if  the  real  parties  on  whom  the 
burden  is  ultimately  to  fall  are  the  same :  Smith  ».  Wainwright,  24  V^erm. 
97.  One  demanding  account  must  himself  account :  Fairchild  v.  Valen- 
tine, 7  Rob.  (N.  Y.)  564. 


448  ADAMS's     DOCTRINE    OF    EQUITY. 

suing  for  a  debt  were  himself  indebted  to  the  defendant, 
he  would  nevertheless  recover  in  his  action,  and  the  de- 
fendant would  be  driven  to  a  cross  action  for  his  own 
claim.  To  obviate  this  inconvenience  it  was  enacted 
"  that  where  there  are  mutual  debts  between  the  plaintiff 
and  defendant,  or  (if  either  party  sue  or  be  sued  as  execu- 
tor or  administrator),  where,  there  are  mutual  debts  be- 
tween the  testator  or  intestate  and  either  party,  one  may 
r*22Sl  ^^  ^^^  against  the  other." (2)  And*in  the  event 
of  bankruptcy  a  still  wider  remedy  is  given,  and 
the  right  of  set-off  is  extended  to  cases  where  mutual 
credit  has  been  given  by  the  bankrupt  and  any  other  per- 
son, although  strictly  speaking,  there  may  not  be  actual 
debts  on  both  sides.  (^)  If  the  cross  demands  are  of  legal 
cognisance,  the  right  of  set-off  is  also  legal ;  and  unless  one 
of  the  demands  involves  an  equitable  element,  their  exist- 
ence creates  no  equity  for  resorting  to  the  Chancery.  If 
one  or  both  be  matter  of  equitable  cognisance,  as,  for 
example,  if  there  be  a  question  of  trust  or  fraud,  the 
set-off  may  be  enforced  in  the  Court  of  Chancery.  (/)^ 
There  are  also  some  cases  occasionally  spoken  of  as  de- 
pending on  an  equitable  set-off,  but  which  would  be  more 
correctly  termed  retainers  in  the  nature  of  set-off.  As, 
for  example,  where  a  legatee  is  indebted  to  his  testator's 
estate,  and  the  executor,  instead  of  paying  the  legacy,  is 
entitled  to  balance  it  against  the  debt.     In  such  a  case  as 

(t)  2  Geo.  2,  c.  22 ;  8  Geo.  2,  c.  24. 

{k)  6  Geo.  4,  c.  16,  s.  50;  Smith's  Merc.  Law  608 ;  Gibson  v.  Bell,  1  B. 
N.  C.  748. 

{I)  Vulliamy  v.  Noble,  3  Meriv.  593,  618 ;  Rawson  «.  Samuel,  Or.  &  P. 
161 ;  Dodd  V.  Lydall,  1  Hare  333. 

^  The  equitable  right  of  set-oflf  was  said,  in  Freeman  v.  Lomas,  9  Hare 
116,  not  to  be  derived  from  or  dependent  upon  any  statutory  right,  but 
founded  on  the  Roman  law.     See  Meriwethen  v.  Bird,  9  Ga.  594. 


OF    ACCOUNT.  449 

this  there  are  not,  in  strictness,  any  mutual  demands  to 
which  the  term  set-off  can  be  applied ;  and  the  right  of 
the  executor  is  rather  a  right  to  retain  the  debt  out  of  the 
legacy  as  a  fund  in  hand,  than  to  set  it  off  against  the 
amount,  (m) 

The  right  of  account  is  essentially  different  from  this. 
It  is  not  a  right  to  amalgamate  independent  cross  de- 
mands, for  the  purpose  of  enabling  one  action  or  suit  to 
suffice ;  but  it  assumes  that  the  several  demands  have  no 
independent  existence,  but  have  been  so  connected  by  the 
original  contract  or  course  of  dealing,  that  the  only  thing 
which  either  party  can  claim  is  the  ultimate  balance.  The 
only  right,  therefore,  is  that  of  taking  the  account ;  and 
the  forms  of  procedure,  both  at  law  and  in  equity,  are 
framed  for  that  purpose.  An  account  of  this  kind  is  not 
confined  to  mere  receipts  and  payments  of  money,  although 
*it  ordinarily  occurs  in  that  form.  But  it  is  r*99j^-i 
applicable  to  any  dealings  which  have  been 
treated  as  equivalent  to  receipts  and  payments.  An 
account,  for  instance,  will  lie  in  respect  of  reciprocal 
deliveries  of  goods,  provided  that  in  the  course  of  deal- 
ing between  the  parties,  such  deliveries  have  been  treated 
as  items  in  an  account,  and  not  as  creating  mere  cross 
demands ;  or  it  will  lie  in  respect  of  a  claim  for  work 
done  and  partially  paid  for  by  advances  from  time  to 
time,  so  that  a  balance  only  of  the  price  is  ultimately 
due.(w)^ 

(m)  Cherry  v.  Boulbee,  4  M.  &  C.  442 ;  Courtney  v.  Williams,  3  Hare 
539  ;  Jones  e.  Mossop,  8  Id.  568  ;  McMahon  v.  Burchell,  2  Ph.  127 ;  [see 
Keim  t\  Muhlenberg,  7  Watts  79.] 

(n)  Wellings  v.  Cooper,  cited  6  Vea.  139,  and  9  Id.  473 ;  O'Conner  w. 
Spaight,  Sch.  &  L.  305  ;  Cottam  v.  Partridge,  4  Man.  &  Gr.  271 ;  Ranger 
V.  Great  Western  Railway,  1  Railw.  Ca.  1. 

^  Where  a  contractor  to  build  a  house  has  performed  his  part  of  the 
29 


450  ADAMS's    DOCTRINE    OF    EQUITY. 

The  remedy  at  law  on  a  mutual  account  is  in  ordinary 
cases  by  assumpsit  for  the  balance,  and,  in  the  case  of 
account  between  merchants,  by  the  action  of  account. 

The  inefficiency  of  the  common  action  of  assumpsit  is 
too  evident  to  require  explanation ;  for  in  such  an  action 
the  jury  must  investigate  the  account,  item  by  item,  so 
as  to  return  the  verdict  for  the  ultimate  balance.  And 
the  practical  impossibility  of  their  so  doing  generally  re- 
sults in  a  reference  to  arbitration. 

The  action  of  account  is  less  unsuitable  than  that  of 
assumpsit,  but  it  is  far  from  meeting  the  exigencies  of 
the  case.  In  this  action  the  investigation  of  items  is  not 
intrusted  to  a  jury  at  nisi  prius,  but  is  referred,  under  a 
judgment  "that  the  defendant  do  account,"  to  auditors  as- 
signed by  the  Court.  After  the  auditors  have  made  their 
report,  a  final  judgment  is  given  that  the  "plaintiff  do 
recover  against  the  defendant"  so  much  as  the  latter  is 
found  to  be  in  arrear.  The  tribunal,  however,  to  which 
the  account  is  subjected,  though  superior  to  a  jury,  is 
attended  with  much  delay  and  expense.  The  auditors 
have  no  power  of  deciding  on  controverted  items,  so  as 
to  carry  on  a  continuous  inquiry,  but  must  from  time  to 
time,  as  any  question  occurs,  interrupt  their  proceedings 
by  referring  it  to  the  Court  or  to  the  jury,  as  a  distinct 
r*22^1  ^®^^®  ^^  *law  or  fact,  and  must  resume  them  again 
when  a  decision  has  been  obtained.  And  even 
in  respect  to  items  not  controverted  they  had  not,  until  3 
&  4  Anne,  c.  16,  any  general  power  to  give  effect  to  their 
inquiry  by  administering  an  oath,  or  by  examining  the 

contract,  on  account  of  which  partial  payments  have  been  made,  that  is 
not  such  matter  of  account  as  will  sustain  a  bill  to  recover  the  balance  : 
Smith  V.  Marks,  2  Rand.  449;  City  Councils.  Page,  Speers  Ch.  159 ;  sed 
vide  Sturtevaut  v.  Goode,  5  Leigh  83. 


OF    ACCOUNT.  .  451 

parties.  There  is  also  an  inconvenience  in  taking  the  ac- 
count at  law,  by  reason  of  the  incapacity  of  the  legal 
procedure  to  operate  beyond  the  immediate  plaintiff  and 
defendant,  or  to  include  rights  or  claims  which  may  be 
collaterally  involved,  (o) 

In  addition  to  these  objections,  the  remedy  itself  is  of 
very  partial  operation.  It  was  originally  applicable  to 
one  class  of  accounts  only,  those  of  bailiffs,  receivers, 
and  guardians  in  socage,  in  respect  of  the  trust  or  privity 
of  contract  existing  therein,  and,  by  special  extension  of 
the  benefit  of  trade,  to  accounts  between  merchants. 
And  so  strictly  was  this  privity  of  contract  construed, 
that  the  action  did  not  lie  by  or  against  executors  or 
administrators.  The  statute  of  13  Edw.  1,  st.  1,  c.  23, 
gave  it  to  the  executors  of  a  merchant ;  the  statute  of 
25  Edw.  3,  st.  5,  c.  5,  gave  it  to  the  executors  of  execu- 
tors ;  and  the  statute  of  31  Edw.  3,  st.  1,  c.  11,  to  ad- 
ministrators. But  it  was  not  until  the  statute  of  3  &  4 
Anne,  c.  15,  that  it  lay  against  executors  and  administra- 
tors of  guardians,  bailiffs,  and  receivers. 

The  difficulties  thus  existing  at  law  are  effectually  ob- 
viated by  the  procedure  in  equity.  A  foundation  is  first 
laid  for  all  necessary  inquiries  by  the  discovery  elicited 
from  the  defendant's  answer.  The  account  is  then  refer- 
red to  a  Master,  who  is  armed  with  power  not  only  to 
examine  witnesses,  but  also  to  examine  the  parties  them- 
selves, and  to  compel  production  of  books  and  documents. 
It  is  not  liable  to  interruption  by  controversies  on  parti- 
cular items,  but  is  carried  on  continuously  to  its  close. 
The  Master  reports  the  final  result  to  the  Court.  The 
report  may  be  ^excepted  to  on  any  points  which  po9g-| 
are  thought  objectionable,  and  all  such  points 

(o)  1  Sehv.  X.  P.  1  ;  1  Story  on  Equity,  s.  446-449. 


452  ADAMs's    DOCTRINE     OF    EQUITY. 

are  simultaneously  re-examinecl  by  the  Court,  and  either 
at  once  determined,  or,  if  necessary  referred  back  to  him 
for  view.  As  soon  as  the  report  is  finally  settled  and 
confirmed,  a  decree  is  made  for  payment  of  the  ultimate 
balance.  If  the  interests  of  other  persons  are  entangled 
in  the  account,  the  Court  may  require  that  they  be  made 
parties  to  the  suit,  or  may  direct,  if  necessary,  the  insti- 
tution of  cross  suits;  and  thus  having  all  their  interests 
before  it,  may  so  modify  a  single  decree,  as  effectually  to 
embrace  and  arrange  them  all. 

If  the  account  is  one  which  might  be  readily  investi- 
gated by  a  jury,  the  necessity  for  equitable  interference 
does  not  exist,  and  it  seems  that  in  that  case  no  equity 
will  arise.  And  if  the  facts  stated  in  the  bill  show  no 
practical  difficulty  in  proceeding  at  law,  a  mere  indefinite 
allegation  that  the  accounts  are  intricate  will  not  prevent 
a  demurrer,  (jt?)^ 

The  same  result  will  follow  if  the  parties  themselves 
have  disposed  of  the  matter  and  have  struck  a  balance 
of  their  account,  for  there  is  then  no  difficulty  in  proceed- 
ing at  law. 

If,  therefore,  there  has  been  an  account  stated  between 
the  parties,  it  may  be  pleaded  as  a  bar  to  both  discovery 
and  relief,  or  may  be  set  up  by  answer  as  a  bar  to  relief. 
And  in  this  latter  case,  if  the  allegation  in  the  answer  be 
not  proved,  it  is  usual  on  referring  the  account  to  the 
Master,  to  direct  that,  if  he  find  any  account  stated,  he 

{p)  Foley  V.  Hill,  1  Ph.  399;  Darthez  v.  Clemens,  6  Beav.  165;  [Pad- 
wick  V.  Hurst,  18  Jurist  763  ;  18  Beav.  575  ;  see  ante,  note,  p.  222.] 

^  Courts  of  equity  will  not  entertain  jurisdiction  when  there  is  no  diffi- 
culty in  the  remedy  at  law :  Monk  v.  Harper,  3  Ed.  Ch.  109  ;  Turnpike 
Co.  V.  Allen,  2  Dev.  &  Batt.  Eq.  115;  Butler  v.  Ardis,  2  McCord  Ch.  60, 
71 ;  Gloninger  v.  Hazard,  42  Penn.  St.  401. 


OF    ACCOUNT.  .  463 

shall  not  disturb  it{qY  The  account,  however,  may  be 
opened  on  the  ground  of  fraud,  or  if  important  errors  are 
specified  and  proved  ;  but  a  general  allegation  that  it  is 
erroneous  will  not  suffice,  (r)  In  some  cases  where  a 
*stated  account  is  impeached,  the  Court  will  re-  r^ooYi 
open  the  whole  and  direct  it  to  be  taken  de  novo. 
In  others,  when  it  is  faulty  in  a  less  degree,  it  will  allow 
it  to  stand,  with  liberty  to  surcharge  and  falsify.  This 
leaves  it  in  full  force  as  a  stated  account,  except  so  far  as 
it  can  be  impugned  by  the  opposing  party.  If  he  shows 
the  omission  of  a  credit,  that  is  a  surcharge  ;  if  he  shows 
the  insertion  of  an  improper  charge,  that  is  a  falsification,  (s) 
The  question  of  what  will  constitute  a  stated  account  is 
in  some  measure  dependent  on  the  circumstances  of  the 
case.  The  mere  delivery  of  an  account,  without  evidence 
of  contemporaneous  or  subsequent  conduct,  will  not  prove 
it  to  be  a  stated  account ;  but  an  acceptance,  implied  from 
circumstances,  will  suffice.  Between  merchants  at  home 
an  account  which  has  been  presented,  and  which  has  not 
been  objected  to  after  the  lapse  of  several  posts,  is  treated 
under  ordinary  circumstances  as  a  stated  account.  Be- 
tween merchants  in  different  countries  a  similar  rule  pre- 
vails; and  if  an  account  is  transmitted  from  one  to  another, 
showing  a  balance  due  to  himself,  and  the  other  keeps  it 
two  years  without  objection,  the  rule  is  to  consider  it  as 
allowed.  (iJ)2 

{q)  Seton  on  Decrees  47 ;  Connop  v.  Hayward,  1  N.  C.  C.-35. 

(r)  Taylor  v.  Haylin,  2  B.  C.  C.  310;  Johnson  v.  Curtis,  3  B.  C.  C.  266  ; 
Mr.  Belt's  notes  ;  [Coleman  ».  Mellersh,  2  Macn.  &  Gord.  309.] 

(«)  Pit  V.  Cholmondeley,  2  Ves.  565  ;  Seton  on  Decrees,  48  ;  Millar  v. 
Craig,  6  Beav.  433, 

(t)  Irvine  v.  Young,  1  S.  &  S.  333 ;  Willis  v.  Jernegan,  2  Atk.  251  ; 

'  An  account  stated  may  be  set  up  by  way  of  plea,  as  a  bar  to  all  dis- 
covery and  relief :  Weed  v.  SmuU,  7  Paige  573 ;  Bullock  v.  Boyd,  2  Ed. 
Ch,  293  ;  Deil's  Ex'rs.  v.  Rogers,  4  Dessaus.  175. 

*  The  Court  may  direct  a  stated  account  to  be  opened  and  taken  de  novo 


454  ADAMS's     DOCTRINE    OF    EQUITY. 

It  is  also  material  to  the  e(juity  for  an  account  that  it 
be  claimed  within  the  proper  time.    Where  the  account  is 

Sherman  v.  Sherman,  2  Vern.  276 ;  Tickel  v.  Short,  2  Ves.  239 ;  1  Dan. 
C.  P.  632. 

upon  a  bill  brought  for  the  purpose,  or  where  a  sufficient  foundation  has 
been  laid  in  the  answer :  but  only  for  fraud  or  errors  specified,  and  which 
are  palpable  or  clearly  proved :  Slee  v.  Bloom,  20  Johns.  669 ;  s.  c.  5 
Johns.  Ch.  366  ;  Lee's  Admr.  v.  Reed,  4  Dana  112;  Botifeur  v.  Weyman 
et  al.,  1  McCord's  Ch.  156 ;  Barrow  v.  Rhinelander,  1  Johns.  Ch.  650 ; 
Johnson's  Ex'rs.  v.  Ketchum,  3  Green  Ch.  364 :  Bloodgood  v.  Zeily,  2  C.  C. 
E.  124 ;  Gray  v.  Washington,  Cooke  321 ;  Roberts  v.  Tottan,  13  Ark.  609 ; 
Lockwood  V.  Thome,  1  Kern.  (N.  Y.)  170.  And  although  in  England  the 
Court  has  gone  the  length  of  holding,  that  where  an  account  has  been  sur- 
charged or  falsified  in  one  or  more  items,  the  complainants  may  then  have 
liberty  before  a  master  to  surcharge  and  falsify  it  at  large ;  yet  in  this 
country,  the  Court  will  not  allow  the  inquiry  to  be  opened  beyond  the  spe- 
cial matter  charged ;  the  account  can  only  be  corrected  in  the  items  which 
the  bill  points  out  as  erroneous  or  alleges  should  be  supplied :  Consequa  v. 
Fanning,  3  Johns.  Ch.  587  ;  Troup  v.  Haight,  Hopk.  239  ;  Chappedelaine 
V.  Dechenaux,  4  Cranch  306  ;  Redman  w.  Green,  3  Ired.  Eq.  54 ;  Bullock  v. 
Boyd,  1  Hoff.  Ch.  294 ;  Nourse  v.  Prime,  7  Johns.  Ch.  69 ;  Phillips  v. 
Belden,  2  Ed.  Ch.  1 ;  Grover  v.  Hall,  3  liar.  &  J.  43  ;  Freeland  v.  Cocke, 
3  Munf.  352;  Compton  v.  Greer,  2  Dev.  Ch.  93;  Miller  v.  Womack's 
Adm'rs.,  Freeman's  Miss.  Ch.  486.  Lilly  v.  Kroesen,  3  Md.  Ch.  83  ;  Wil- 
liams V.  Savage  Manufact.  Co.,  1  Id.  306.  In  cases  of  gross  fraud  the 
Court  will  direct  the  whole  account  to  be  opened  and  taken  de  novo  :  Bank- 
head  V.  Alloway,  6  Cold.  (Tenn.)  56.  Where  an  account  stated  is  opened 
a  long  time,  as  sixteen  years,  after  it  has  been  rendered,  it  will  not  be 
opened  generally.  It  will  be  opened  as  to  fraud  or  mistakes  charged  in 
the  bill,  and  so  far  proved  that  the  court  is  satisfied  that  they  ought  to  be 
corrected ;  and  when  some  such  errors  are  proved,  then  as  to  other  errors 
charged,  which  the  court  is  satisfied  ought  to  be  made  the  subjects  of  further 
examination.  In  restating  a  stated  account  between  partners,  thus  opened, 
which  has  been  made  up  of  separate  adventures  and  transactions,  under- 
taken under  an  agreement  for  the  mutual  rendering  of  annual  accounts 
of  the  whole  business,  the  decree  directed  the  account  to  be  restated  in  the 
form  of  a  general  account  of  the  whole  business :  Ogden  v.  Astor,  4  Sandf. 
S.  C.  311. 

A  suit  to  impeach  an  account  ought  to  be  brought  within  a  reasonable 
^ime,  or,  at  farthest,  within  the  statutory  period  for  commencing  an  action 
at  law  upon  matters  of  account:  Lupton  v.  Janey,  13  Peters  381.  And 
where  the  bar  of  the  statute  is  inapplicable,  as  e.  g.,  where  the  demand  is 


OF    ACCOUNT.  455 

sought  under  a  legal  title,  or  under  an  equitable  title  of 
like  nature  with  a  legal  one,  that  limit  of  time  will  be 
adopted  in  equity  which  is  prescribed  by  the  Statute  of 
Limitations  at  law.  When  the  bar  of  the  statute  is  inap- 
plicable, there  may  nevertheless  be  a  bar  in  equity,  origin- 
ating in  long  acquiescence  by  the  party,  and  in  the  conse- 
quent presumption  that  he  has  either  been  satisfied 
*his  demand,  or  that  he  intended  to  relinquish  r*ooQ-| 
it.(w)  And  in  a  case  where  the  account  was 
carried  back  into  remote  transactions,  of  which  accounts 
had  been  regularly  kept  by  a  deceased  party  at  the  time, 
it  was  ordered  that  they  should  be  received  as  primd  facie 
evidence,  so  as  to  throw  on  the  other  side  the  oniLS  of  im- 
peaching them.(t;)^ 

(a)  Smith  t?.  Clay,  3  B.  C.  C.  639,  n. ;  Stackhouse  v.  Barnston,  10  Ves. 
453,  466 ;  Bond  v.  Hopkins,  1  Sch.  &  L.  413,  428 ;  Hovenden  v.  Lord  An- 
nesley,  2  Id.  607,  629;  3  &  4  Wm.  4,  c.  27,  s.  24-27. 

(r)  Chalmer  v.  Bradley,  1  J.  &  W,  51-65. 

purely  equitable,  the  court  is  loath  to  interfere  after  a  considerable  lapse 
of  time ;  particularly  after  the  death  of  parties  whose  transactions  are  in- 
volved in  the  inquiry :  Baker  v.  Biddle,  Baldwin  C.  C.  R.  418 ;  Ellison  v. 
Moffat,  1  Johns.  Ch.  46  ;  Ray  v.  Bogart,  2  Johns.  Cas.  432  ;  Rayner  v.  Pear- 
sail,  3  Johns.  Ch.  578,  586 ;  Mooers  v.  White,  6  Id.  360,  370 ;  Boiling  v. 
Boiling,  5  Munf.  334 ;  Randolph  r.  Randolph,  2  Call  537 ;  Dexter  v.  Ar- 
nold, 2  Sumner  108  ;  Wilde  v.  Jenkins,  4  Paige  481 ;  Dakin  v.  Demming, 
6  Paige  95 ;  Bloodgood  r.  Zeily,  2  C.  C.  E.  124  ;  Gregory's  Ex'r.  ».  For- 
rester, 1  McCord  Ch.  318,  332;  Ex'rs  of  Radcliffe  v.  Weightman,  Id. 
408  ;  Hutchins  v.  Hope,  7  Gill  119  ;  Chesson  v.  Chesson,  8  Ired  Eq.  141. 

Where  there  has  been  fraud,  however,  the  court  will  open  and  examine 
accounts  after  any  length  of  time,  even  though  the  person  who  committed 
the  fraud  be  dead :  Botifeur  r.  Weyman,  1  McCord  Ch.  156.  But  it  must 
be  shown  that  the  fraud  was  not,  and  could  not  with  reasonable  diligence 
be  discovered,  until  within  six  years  before  the  commencement  of  suit : 
Ogden  V.  Astor,  4  Sandf.  S.  C.  311.  And  so  of  fraud  apparent  on  the  face 
of  the  account,  or  which  would  be  discovered  with  slight  examination : 
Ibid. 

^  As  to  when  an  account  ought  to  be  claimed,  and  what  constitutes  a 
stated  account,  see  Langdon  r.  Roane's  Adm'r.,  6  Ala.  518  ;  Murray  v.  Tol- 


456  ADAMS's    DOCTRINE    OF    EQUITY. 


[*229]  *CHAPTER    II. 

OF     PARTITION OF     ASSIGNMENT      OF     DOWER SUBTRACTION 

OF     TITHES ASCERTAINMENT     OF     BOUNDARY PAYMENT     OF 

RENTS. 

The  equity  for  the  severance  of  co-tenancy  and  other 
analogous  relief  originates  in  the  fact,  that  the  co-tenants 

land,  3  Johns.  Ch.  575  ;  Burden  v.  McElmoyle,  1  Bailey  Eq.  375  ;  Sher- 
wood V.  Sutton,  5  Mason  143;  Freeland  v.  Heron  et  al.,  7  Cranch  147; 
Philips  V.  Belden,  2  Ed.  Ch.  1.  It  is  generally  held  now  that  an  account 
rendered,  not  objected  to  in  a  reasonable  time,  becomes  an  account  stated  : 
Thompson  v.  Fisher,  13  Penn.  St.  313  ;  Porter  v.  Patterson,  15  Id.  236 ; 
Beers  v.  Reynolds,  12  Barb.  288  ;  Dows  v.  Durfee,  10  Id.  213  ;  Coopwood 
V.  Bolton,  26  Miss.  212;  Brown  v.  Van  Dyke,  4  Halst.  Ch.  795.  In  Og- 
den  V.  Astor,  4  Sandf.  S.  C.  311,  it  was  held  that  an  account  by  a  surviving 
partner,  rendered  to  the  representatives  of  his  deceased  copartner,  one  of 
whom  was  a  female  unacquainted  with  accounts,  and  the  other  a  nephew 
of  the  accountant,  who  had  entire  confidence  in  him,  which  account  was 
without  vouchers,  and  showed  the  results  merely,  and  not  the  details  of 
various  transactions  and  adventures,  would  become  a  stated  account  after 
long  acquiescence  without  objection  on  these  grounds,  no  fraud  or  collusion 
being  charged.  But  it  is  otherwise  where  the  party  receiving  the  account 
is  so  deficient  in  mental  capacity  as  to  be  unable  to  give  it  prop6r  ex- 
amination :  Williams  v.  Savage  Manufact.  Co.,  1  Md.  Ch,  306.  See  Rembert 
V.  Brown,  17  Ala.  667. 

Where,  in  restating  an  account  after  a  great  lapse  of  time,  there  is  to 
be  a  correction  of  errors,  charged  in  respect  of  which  the  account  would 
not  have  been  opened  if  they  had  stood  alone,  it  will  be  ordered  that  the 
books,  papers  and  vouchers  in  possession  of  the  accounting  party  shall  be 
taken  as  prima  facie  correct  and  genuine,  without  further  proof  than  his 
oath,  or  that  of  his  clerk  or  agent  having  their  management  and  custody, 
that  they  are  the  original  entries,  papers  and  vouchers :  Ogden  v.  Astor, 
4  Sandf.  S.  C.  311. 


OF    PARTITION.  457 

have  a  rightful  unity  of  possession,  and  that  its  severance 
cannot  be  adequately  effected  at  law.(«)*  It  is  most  fre- 
quently applied  in  effecting  partition  between  co-owners, 
but  its  principle  extends  to  suits  for  assignme«t  of  dower 
and  for  relief  against  substraction  or  non-payment  of  tithes. 

There  is  also  an  equity  for  ascertainment  of  boundary 
between  the  estates  of  independent  proprietors,  where  the 
confusion  has  arisen  from  the  defendant's  act ;  and  for 
compelling  payment  of  rents,  where  by  confusion  of 
boundary,  or  other  cause,  the  remedy  by  distress  is  gone 
without  the  plaintiff's  default. 

The  manner  of  enforcing  a  partition  at  law,  until  abol- 
ished by  a  late  statute,  was  by  a  writ  of  partition,  issued 
to  the  sheriff,  requiring  him  to  make  partition  by  the  ver- 
dict of  a  jury,  and  to  assign  to  each  co-owner  his  part  in 
severalty.  In  the  case  of  coparceners,  who  acquire  their 
united  estate  by  act  of  law,  this  writ  always  lay  as  of 
common  right.  It  did  not  orginally  lie  in  favor  of  a 
joint  tenant  or  tenant  in  common,  whose  united  estate  is 
conferred  by  gift  or  contract,  but  it  was  afterwards  ex- 
tended to  them  by  statute.  (^)  The  partition  of  copyholds 
*was  effected  by  a  plaint  in  the  lord's  Court  in  r*ooA-i 
the  nature  of  a  writ  of  partition.  The  writ  and 
the  plaint  are  now  abolished,  (c) 

(a)  Pulteney  v.  Warren,  6  Ves.  73,  89. 

(&)  31  Hen.  8,  c.  1 ;  32  Id.  c.  32.  (e)  3  &  4  Wm.  4,  c.  27,  s.  36. 

^  The  partition  of  real  property  is  regulated  in  nearly  all  of  the  United 
Stat€8  by  special  statutes,  and  the  efficiency  and  adaptability  of  the  common 
law  action  greatly  increased.  These  statutes  will  be  found  collected  in  a 
note  to  Washburn  on  Ileal  Property,  vol.  i.,  p.  433.  The  flexibility  and 
neatness  of  the  equitable  partition  must  nevertheless,  in  many  instances, 
render  that  method  preferable  to  the  more  unyielding  forms  of  the  common 
law  action.  Upon  the  subject  of  partition  in  equity,  see  the  notes  to  Agar 
17.  Fairfax,  2  Lead.  Cas.  Eq.  374. 


458  ADAMS's    DOCTRINE    OF    EQUITY. 

The  inconvenience  of  the  remedy  by  writ  of  partition 
originated  a  concurrent  jurisdiction  in  equity,  the  exer- 
cise of  which  may  be  demanded  as  matter  of  right,  not- 
withstanding the  difficulties  by  which  a  division  may  be 
embarrassed,  or  the  mischief  which  it  may  entail  on  the 
property,  (c?)^     The  jurisdiction  was  originally  confined 

{d)  Agar  v.  Fairfax,  17  Ves.  533  ;  "Warner  v.  Baynes,  Amb.  589 ;  Turner 
V.  Morgan,  8  Ves.  143. 


'  Partition  between  tenants  in  common  of  real  property  is  a  matter  of 
right  in  equity  where  both  the  parties  cannot,  or  either  of  them  will  not, 
consent  to  hold  and  use  such  property  in  common.  See  Wright  v.  Marsh, 
2  Greene  (Iowa)  94 ;  Howey  v.  Goings,  13  111.  95 ;  Donnell  v.  Mateer,  7 
Ired.  Eq.  94  ;  Holmes  v.  Holmes,  2  Jones  Eq.  334.  In  Georgia,  it  appears 
that  a  bill  for  equitable  partition  will  only  lie,  where  there  is  some  diflB- 
culty  or  obstruction  in  the  way,  so  that  the  remedy  at  law  is  inadequate 
and  imperfect,  as  where  a  discovery  and  account  of  rents  and  profits  is 
necessary:  Boggs  v.  Chambers,  9  Ga.  1 ;  Rutherford  v.  Jones,  14  Id.  521 ; 
Hall  V.  Piddock,  21  N.  J.  311.  But  the  title  of  the  complainant  must  be 
undisputed,  otherwise  the  bill  will  be  dismissed,  or  else  retained  until  the 
title  has  been  settled  at  law :  Castleman  v.  Veitch,  3  Rand.  598 ;  Straughan 
V.  Wright,  4  Id.  493 ;  Smith  v.  Smith,  10  Paige  470  ;  Steedman  v.  Weeks, 
2  Strob.  Eq.  141 ;  Albergottie  v.  Chaplin,  10  Rich.  Eq.  428  ;  Pell  v.  Ball, 
1  Id.  361 ;  Collins  v.  Dickinson,  1  Hay.  240  ;  Davis  v.  Davis,  2  Ired.  Ch. 
607 ;  Wilkin  ».  Wilkin,  1  Johns.  Ch.  Ill  ;  Manners  v.  Manners,  1  Green 
Ch.  384 ;  Wisely  v.  Findley,  3  Rand.  361 ;  Stuart  v.  Coalter,  4  Id.  74 ; 
Garrett  v.  White,  3  Ired.  Ch.  131  ;  Bruton  v.  Rutland,  3  Humph.  435  ; 
Hosford  V.  Merwin,  5  Barb.  S.  C.  51 ;  Burhans  v.  Burhans,  2  Barb.  Ch. 
398 ;  Trayner  v.  Brooks,  4  Hey.  295  ;  Maxwell  v.  Maxwell,  8  Ired.  Eq.  25 ; 
Foust  V.  Moorman,  2  Carter  17 ;  Boone  v.  Boone,  3  Md.  Ch.  497 ;  Whil- 
lock  V.  Hale,  10  Humph.  64 ;  Corbett  v.  Corbett,  1  Jones  Eq.  114  ;  Walker 
V.  Laflin,  26  111.  472 ;  Williams  v.  Wiggand,  53  HI.  233  ;  Gourley  v.  Wood- 
bury, 43- Verm.  89  ;  Hassam  v.  Day,  39  Miss.  392 ;  Dewitt  v.  Ackerman,  2 
Green  (N.  J.)  215  ;  but  see,  Cuyler  v.  Ferrill,  1  Abb.  (U.  S.)  169  ;  Moren- 
haut  V.  Higuera,  32  Cal.  289  ;  Bollo  v.  Navarro,  33  Id.  459.  The  bill  must 
in  general  allege  seisin  in  both  complainant  and  respondent :  Maxwell  v. 
Maxwell,  8  Ired.  Eq.  25  ;  Adams  v.  Ames  Iron  Co.,  24  Conn.  230  ;  though 
see  Howey  v.  Goings,  13  111.  95.  But  actual  possession  on  the  part  of  the 
complainant  is  not  necessary  ;  it  is  sufficient  if  there  be  not  a  legal  dis- 
seisin: Foust  y.  Moorman,  2  Carter  17  ;  Denton  ».  Woods,  19  La.  Ann.  356  ; 
Florence  v,  Hopkins,  46  N.  Y.  182.    Though  in  general  a  partition  will 


OF    PARTITION.  459 

to  land  of  freeliold  tenure,  but  has  been  extended  to 
copyholds  by  statute,  (e) 

(e)  Horncastle  t?.  Charlesworth,  11  Sim.  315  ;  Jope  v.  Morshead,  6  Beav. 
213  ;  4  &  5  Vict.  c.  35,  s.  85. 

not  be  decreed  where  the  title  is  disputed,  this  applies  only  to  the  legal 
title.  In  cases  of  equitable  estates,  or  defences,  chancery  has  of  necessity 
jurisdiction  over  the  whole  matter:  Donnell  v.  Mateer,  7  Ired.  Eq.  94; 
Foust ».  Moorman,  2  Carter  17;  Carter  r.  Taylor,  3  Head.  (Tenn.)  30; 
Leverton  v.  Waters,  7  Cold.  (Tenn.)  20.  Where  the  defendant,  in  an 
action  of  partition  at  law,  has  an  equitable  defence,  he  may  go  into  equity 
and  obtain  an  injunction  to  stay  proceedings  at  law,  till  the  matter  is 
settled  in  equity,  or  if  the  suit  be  already  in  equity,  the  respondent  must 
set  up  his  defence  by  a  cross  bill ;  though  his  omission  to  do  so,  will  not 
prevent  his  filing  a  separate  bill  for  relief:  Donnell  v.  Matee,  ut  supra. 
On  this  principle  that  equity  does  not  determine  upon  conflicting  legal 
titles  in  partition,  a  decree  therein  is  not  conclusive  evidence  in  ejectment : 
Whillock  V.  Hale,  10  Humph.  64. 

Partition  can  be  had  of  a  mere  equitable  estate:  Hitchcock  v.  Skinner,  1- 
HofT.  Ch.  21  ;  or  of  an  incorporeal  hereditament :  Bailey  v.  Sisson,  1  R. 
I.  233. 

If  land  sought  to  be  parted  is  subject  to  a  mortgage,  the  equity  of  re- 
demption only  can  be  divided  :  AYotton  v.  Copeland,  7  John.  Ch.  140. 

In  a  partition  among  heirs  or  devisees,  notice  must  be  given  to  all  the 
parties  interested,  or  they  will  not  be  bound  by  the  acts  of  the  court :  Vick 
V.  The  Mayor  of  Vicksbug,  1  How.  (Miss.)  379. 

Parties  to  proceedings  in  partition,  acquire  no  new  title  thereby  ;  and 
where  they  are  made  such  by  publication,  without  actual  notice  are  not 
estopped  thereby  from  setting  up  their  legal  title  :  McBain  v.  McBain,  15 
Ohio  St.  337. 

The  wife  of  a  tenant  in  common  is  not  a  necessary  party  to  a  suit  for 
partition :  Matthews  v.  Matthews,  1  Ed.  Ch.  565.  Yet  see  Graydon  v. 
Graydon,  1  McMullan  Eq.  63. 

Judgment  creditors  and  mortgagees  of  tenants  in  common,  are  not  proper 
parties  :  Sebring  v.  Mersereau,  9  Cowen  344 ;  Harwood  v.  Kirby,  1  Paige 
469  ;  Low  V.  Holmes,  2  Green  (N.  J.)  148  ;  Speer  v.  Speer,  1  McCarter  (N. 
J.)  240;  Thruston  v.  Minke,  32  Md.  571.  Though  a  mortgagee  may  be 
joined  where  his  interests  would  otherwise  be  injured  :  Whitton  v.  Whit- 
ton,  38  N.  Hamp.  135.  Nor  a  widow  entitled  to  her  "living"  upon  a 
tract  of  land,  the  heirs  of  the  fee  seeking  a  partition  :  McClintic  v.  Manns, 
4  Munf.  328.  Nor  a  railroad  corporation,  which  has  laid  out  its  road  over 
lands  held  by  tenants  in  common :  Weston  v.  Foster,  7  Mete.  297-  A  de- 
cree of  partition  of  the  estate  of  an  intestate  conveys  only  a  contingent  in- 


460  ADAMs'S    DOCTRINE    OF    EQUITY. 

The  principal  inconveniences  attendifig  partition  at 
law  were,  that  the  writ  could  only  be  issued  by  and 
against  the  tenants  in  possession,  so  that  an  estate  in  re- 
mainder or  contingency  could  not  be  bound;  that  the 
judgment  was  for  partition  according  to  the  title  proved, 
so  that  the  plaintiff  must  prove  the  defendant's  title  as 
well  as  his  own;  and  that  the  partition  being  made,  not 
by  mutual  conveyances,  but  by  the  sheriff's  actual  divi- 
sion and  the  subsequent  judgment  of  the  Court  was  often 
incapable  of  being  conveniently  modelled.  In  the  Court 
of  Chancery  these  difficulties  do  not  exist.  Parties  having 
limited  interests,  as,  for  example,  tenants  for  life  or  years, 
may,  if  they  please,  have  a  partition  in  equity  as  well  as 
at  law,  in  respect  of  their  own  interests  only.(/)  But 
if  a  complete  partition  be  desired,  all  parties  interested 
may  be  brought  before  the  Court,  and  all  estates,  whether 
in  possession  or  expectancy,  including  those  of  infants 
and  of  persons  not  in  esse,  may  be  bound  by  the  decree.  (^) 
The  defendant's  titles  need  not  be  proved  by  the  plain- 
r*9Qi-i  tiff,  but  *may  be  ascertained  by  a  reference' to 
the  Master; (A)  and  the  partition  itself,  being 
effectuated  by  mutual  conveyances,  may  be  made  in  a 

(/)  Baring  v.  Nash,  1  Ves.  &  B.  551. 

[g]  Brook  v.  Lord  Hertford,  2  P.  Wms.  518  ;  Gaskell  v.  Gaskell,  6  Sim. 
643  ;  Wills  V.  Slade,  6  Ves.  498  ;  Seton  on  Decrees  275. 

[h)  Jope  V.  Morshead,  6  Beav.  213 ;  Agar  v.  Fairfax,  17  Ves.  533,  542. 

terest,  defeasible  in  behalf  of  the  creditors  of  the  intestate:  Dresher  w. 
Allentown,  &c.,  Co.,  52  Penn.  St.  225.  See  as  to  dower,  post,  233.  In 
New  York,  a  doweress  cannot  be  sole  plaintiflE"  or  defendant :  Wood  v. 
Clut§,  1  Sandf.  Ch.  199.  In  Maryland,  by  statute,  a  widow's  dower  must 
be  set  off  to  her  in  an  action  of  partition.  See  Phelps  v.  Stewart,  17  Md. 
240 ;  Stallings  v.  Stallings,  22  Id.  41.  A  tenant  by  the  curtesy  initiate 
may  be  a  party  to  a  bill  for  partition :  Riker  v.  Drake,  4  Edw.  Ch.  668  ; 
as  may  tenants  by  curtesy  consummate.  See  1  Roper  on  Husband  and 
Wife  36. 


OF    PARTITION.  461 

more  convenient  form.  Its  general  principle  is  of  course 
the  same  as  that  of  a  partition  at  law,  viz.,  a  division  of 
the  estate ;  but  if  the  estate  is  not  susceptible  of  an 
exact  division,  an  allotment  may  be  made  in  unequal 
shares,  with  compensation  for  the  inequality  by  creation 
of  a  rent  or  charge.  A  partition,  however,  must  be  bond 
fide  made,  and  the  pecuniary  charge  confined  to  correc- 
tions of  inequality.  There  cannot,  under  the  name  of 
such  correction, be  substituted  a  mere  sale  to  one  co-tenant; 
and  therefore,  if  the  estate  consist  of  a  single  house,  the 
entire  house  must  be  divided,  however  inconvenient  such 
division  may  be.(«y 

(t)  Clarrendon  v.  Hornby,  1  P.  Wms.  446  ;  Turner  v.  Morgan,  8  Yes. 
143  ;  Story  v.  Johnson,  2  Y.  &  C.  586, 611  ;  Horncastle  v.  Charlesworth,  11 
Sim.  315  5  Mole  v.  Mansfield,  15  Id.  41  ;  Yin.  Ab.  Partition,  Z.,  PI.  2. 

*  In  case  the  estate  cannot  be  exactly  divided,  the  court  will  decree  a 
pecuniary  compensation  to  one  or  more  of  the  parties  for  owelty  or  equality 
of  partition,  or  charge  part  of  the  land  with  a  rent,  servitude,  or  easement, 
for  their  benefit.  See  Smith  v.  Smith,  10  Paige  470;  Graydon ».  Graydon, 
1  McMullan  Eq.  63 ;  Haywood  v.  Judson,  4  Barb.  S.  C.  228 ;  Warfield 
V.  Warfield,  5  Har.  &  J.  459 ;  Wynne  v.  Tunstall,  1  Dev.  Ch.  23 ;  Cox  v. 
McMullin,  14  Gratt.  82 ;  Phelps  v.  Green,  3  Johns.  Ch.  302  ;  Larkin  v. 
Mann,  2  Paige  27  ;  Norwood  i\  Norwood,  4  Har.  &  J.  112. 

One  party  may  have  given  to  him  a  right  of  way  over  another's  share  : 
Cheswell  v.  Chapman,  38  N.  H.  17  ;  see  also,  Hoffman  ».  Savage,  15  Mass. 
130 ;  Chandler  v.  Goodrich,  23  Maine  78. 

In  most  of  the  states,  chancery  has  power  to  order  a  sale  of  the  premises 
in  a  suit  for  partition.  See  Pell  v.  Ball,  1  Rich.  Ch.  361 ;  Thompson  v. 
Hardman,  6  John.  Ch.  436  ;  Steedman  r.  Weeks,  2  Strob.  Eq.  145 ;  Dun- 
ham V.  Minard,  4  Paige  441 ;  Reynolds  v.  Reynolds,  5  Id.  161 ;  Calwell  v. 
Boyer,  8  Gill  &  J.  136  ;  Matter  of  Skinner,  2  Dev.  &  Batt.  Eq.  63;  Smith, 
V.  Brittain,  3  Ired.  Ch.  347  ;  Royston  v.  Royston,  13  Ga.  425.  So  in  Penn- 
sylvania :  Acts  of  April  18,  1853,  s.  2,  and  April  22,  1863,  s,  1.  But  see, 
on  the  other  hand,  Deloney  r.  Walker,  9  Porter  497  ;  Norment  p.  Wilson, 
5  Humph.  310. 

In  case  of  a  sale,  the  shares  of  infant  defendants  ought  not  to  be  paid  to 
their  guardians,  ad  litem,  but  should  be  brought  into  court,  and  invested 
for  the  benefit  of  such  infants  :  Carpenter  v.  Schermerhorn,  2  Barb.  Ch. 
314.  So,  if  such  infant  is  a  wife,  her  share  should  not  be  paid  to  the  hus- 
band :  Sears  r.  Hyer,  7  Paige  483. 


462  ADAMS's    DOCTRINE    OF    EQUITY. 

The  mode  in  which  a  partition  is  effected  in  equity  is 
that  after  the  interests  of  all  parties  have  been  ascertained, 
either  by  evidence  in  the  cause,  or  by  the  Master's  report, 
a  commission  is  issued  to  persons  nominated  by  the  par- 
ties, or  if  necessary  by  the  Court,  directing  them  to  enter 
on  and  survey  the  estate,  to  make  a  fair  partition  thereof, 
to  allot  their  respective  shares  to  the  several  parties,  and 
to  make  a  return  of  their  having  done  so  to  the  Court. 
The  commissioners  in  making  their  division  are  guided 
by  the  principles  already  explained.  After  making  it, 
they  allot  to  the  several  parties  their  respective  shares ; 
and  in  doing  this  they  ought  to  look  to  their  respective 
circumstances,  and  to  assign  to  each  that  part  of  the  pro- 
perty which  will  best  accommodate  him.(A*)^ 

The  return  of  the  commissioners,  when  made,  is  con- 
firmed by  the  Court.^  The  confirmation,  however,  does 
not,  like  the  judgment  on  a  writ  of  partition,  operate  on 
the  actual  ownership  of  the  land,  so  as  to  divest  the 
parties  of  their  undivided  shares,  and  reinvest  them  with 
r*9^91  corresponding  *estates  in  their  respective  allot- 
ments, but  it  requires  to  be  perfected  by  mutual 
conveyances ;  and  the  next  step,  therefore,  after  confirma- 
tion of  the  return,  is  a  decree  that  the  plaintiffs  and  de- 

(A;)  Story  v.  Johnson,  1  Y.  &  C.  538 ;  2  Id.  586. 

^  A  less  expensive  mode  than  the  appointment  of  commissioners  is  for 
the  court  to  make  a  declaration  that  the  estate  ought  to  be  divided,  with 
liberty  to  the  parties  interested  therein  to  bring  before  the  judge  at  cham- 
bers proposals  for  partition.    See  Clarke  v.  Clayton,  2  Giff.  333. 

'  '  The  report  of  the  commissioners  is  regarded  in  the  same  light  as  a  ver- 
dict at  law,  and  will  only  be  set  aside  for  such  cause  as  would  induce  a 
Court  to  grant  a  new  trial :  Livingston  v.  Clarkson,  3  Edw.  Ch.  596.  See 
Wilhelm  v.  Wilhelm,  4  Md.  Ch.  330.  For  the  practice  in  New  Jersey  on 
the  commissioners'  report,  see  Bentley  v.  The  Dock  Co.,  1  McCart.  480. 
Commissioners  have  no  judicial  powers  to  determine  any  question  of  the 
title:  Allen  v.  Hall,  50  Maine  253. 


OF    PARTITION.  463 

fendants  do  respectively  convey  to  each  other  their 
respective  shares,  and  deliver  up  the  deeds  relating 
thereto,  and  that  in  the  meantime  the  allotted  portions 
shall  respectively  be  held  in  severalty.^  If  any  of  the 
co-owners  have  settled  or  mortgaged  their  shares,  direc- 
tions will  be  given  for  framing  the  conveyance  so  that  all 
parties  shall  have  the  same  interests  in  the  divided  shares, 
which  they  before  had  in  the  undivided  shares.  (^)  If  the 
infancy  of  the  parties  or  other  circumstances  prevent  the 
immediate  execution  of  conveyances,  the  decree  can  only 
extend  to  make  partition,  give  possession,  and  order  en- 
joyment accordingly  until  effectual  conveyances  can  be 
made.  If  the  defect  arises  from  infancy,  the  infant  must 
have  a  day  after  attaining  twenty-one  years  to  show  cause 
against  the  decree,  (m)^ 

{I)  Horncastle  v.  Charlesworth,  11  Sim.  315,  317  ;  Story  v.  Johnson,  2 
Y.  &  C.  586. 

(m)  Brook  v.  Lord  Hertford,  2  P.  Wms.  518  ;  Seton  on  Decrees  275. 

^  The  effect  of  a  decree  of  partition  is  no  more  than  that  of  an  ordinary 
conveyance  at  law,  and  does  not  create  of  itself  an  adverse  possession : 
Anderson  v.  Hughes,  5  Strobh.  Law  74. 

In  Maryland,  the  decree  does  not  direct  the  execution  of  conveyances, 
but  that  the  parties  hold  in  severalty,  which  is  of  equivalent  effect :  Young 
V.  Frost,  1  Md.  377.  In  Pennsylvania  it  is  provided  by  the  Act  of  1857, 
that  the  decree  of  a  Court  of  equity  shall  have  the  same  effect  in  vesting 
the  titles  of  the  several  purparts,  as  the  judgment  in  the  common  law 
action  that  the  partition  remain  firm  and  stable  forever  ;  and  it  has  been 
held  that  under  this  statute  conveyances  are  unnecessary:  Griffith  v.  Phil- 
lips, 3  Grant's  Cas.  381.  The  right  of  property  passes  from  the  date  of 
the  commissioners'  report :  Dixon  v.  Warters,  8  Jones  L.  (N.  C.)  449. 

'  Where  some  of  the  owners  are  infants,  the  return  of  the  commissioners 
for  a  partition  will  not  be  confirmed  until  the  infants  have  been  brought 
before  the  Court  by  bill :  House  v.  Falconer,  4  Dessnus.  86.  Independently 
of  statutes,  the  Court  has  power  to  decree  a  conveyance  by  an  infant  party 
in  a  suit  for  partition  to  be  binding  on  him,  unless  he  shows  cause  within 
six  months  after  becoming  of  age  :  Jackson  v.  Edwards,  7  Paige  386,  405. 
See  also,  Latimer  r.  Rogers,  3  Head.  (Tenn.)  692 ;  Long  r.  Mulford,  17 
Ohio  St.  484. 

But  in  New  York,  where  all  the  parties  are  infants,  proceedings  in  par- 


464  ADAMS's    DOCTRINE    OF    EQUITY. 

In  addition  to  the  decree  for  a  partition,  the  Court  may 
also,  if  either  of  the  co-owners  has  been  in  the  exclusive 
reception  of  the  rents,  decree  an  account  of  his  receipts.^ 
But  the  mere  fact  of  his  having  occupied  the  property  will 
not  of  itself  make  him  liable  for  an  occupation  rent ;  for 
the  effect  of  such  a  rule  would  be  that  one  tenant  in  com- 
mon, by  keeping  out  of  the  actual  occupation  of  the 
premises,  might  convert  the  other  into  his  bailiff,  and  pre- 
vent him  from  occupying  them,  except  upon  the  terms  of 
paying  rent.(w)  The  period  over  which  the  account  will 
extend  was  originally  unlimited  in  the  case  of  joint  tenants 
and  coparceners,  on  the  ground  that  a  mutual  trust  existed 
between  them.  In  the  case  of  tenants  in  common,  it  was 
confined  to  six  years,  by  analogy  to  the  statute  which  gave 
r*2^^1  ^^^'^*^^^  account  at  law.  It  is  now  confined  in 
all  cases  to  six  years,  (o)^ 

(n)  Lorimer  v.  Lorimer,  5  Mad.  363 ;  McMahon  v.  Burchell,  2  Ph.  127 ; 
Henderson  v.  Eason,  2  Ph.  308. 

(o)  Prince  v.  Heylin,  1  Atk.  493  ;  4  Ann.  c.  16,  s.  27 ;  3  &  4  Wm.  4,  c. 

27. 

tition  are  invalid  :  Gallatian  v.  Cunningham,  8  Cowen  361.  Nor  can  an 
infant  maintain  a  bill  alone :  Postley  v.  Kain,  4  Sandf.  Ch.  508.  See 
Johnson  v.  Noble,  24  Mo.  252. 

^  Rozier  v.  Griflfith,  31  Mo.  171.  See  also,  Leach  v.  Beattie,  33  Verm. 
195  ;  Early  v.  Friend,  16  Gratt.  21. 

'  A  tenant  in  common  in  sole  possession,  is  chargeable,  upon  partition, 
with  an  occupation  rent :  Hitchcock  v.  Skinner,  1  HofiF.  Ch.  21  ;  Backler 
V.  Farrow,  2  Hill  Ch.  111.  And  sometimes  interest  on  the  rents  from  the 
time  of  bill  filed :  Carter  v.  Carter,  5  Munf.  108.  But  he  will  be  allowed 
for  substantial  improvements  made  by  himself  or  his  ancestors:  Respass 
V.  Breckenridge,  2  A,  K.  Marsh.  581 ;  Louvalle  v.  Menard,  1  Gilman  39 ; 
Conklin  v.  Conklin,  3  Sandf.  Ch.  64 ;  Hitchcock  v.  Skinner,  supra.  Or, 
as  is  most  usual,  his  share  shall  include  the  improvements :  St.  Felix  v. 
Rankin,  3  Ed.  Ch.  323  ;  Brookfield  v.  Williams,  1  Green  Ch.  341 ;  Sneed 
V.  Atherton,  6  Dana  276 ;  Borah  v.  Archer,  7  Id.  176 ;  Dean  v.  O'Meara, 
47  111.  120. 


OF    PARTITION.  465 

When  a  ship  is  the  subject  of  tenancy  in  common,  it 
is  obviously  impossible  to  make  partition,  and  a  decree 
for  sale  is  beyond  the  jurisdiction  of  the  Court.^  The 
co-ownership,  therefore,  is  incapable  of  compulsory  sever- 
ance, and  if  it  were  governed  during  its  continuance  by 
the  ordinary  rule  of  law,  exempting  each  of  the  co- 
owners  from  any  control  by  the  rest,  would  enable  any 
one  of  them,  by  resisting  the  employment  of  the  ship, 
to  render  it  valueless  to  all.  In  order  to  obviate  this  in- 
convenience, there  is  a  jurisdiction  in  the  Court  of  Ad- 
miralty to  entertain  the  application  of  a  majority  in  value 
or  interest,  for  liberty  to  employ  the  ship  in  a  particular 
adventure,  giving  security  to  their  co-owners,  either  to 
bring  her  back  or  to  pay  the  value  of  their  shares.  When 
this  is  done  the  dissentient  owners  bear  no  portion  of  the 
expenses,  and  have  no  share  in  the  profits.  It  is  con- 
sidered that  the  same  right  exists  where  the  owners  are 
equally  divided,  but  its  extension  to  a  minority  is  more 
doubtful,  (jt?)  2 

( p)  Story  on  Partnership,  ss.  427-439  ;  Smith's  Merc.  Law  174  ;  Davis 
V.  Johnston,  4  Sim.  539 

^  See  as  to  the  jurisdiction  of  equity  in  case  of  part-owners :  Crapster  v. 
Griffith,  2  Bland  5  ;  Milburn  v.  Guythur,  8  Gill  92  ;  Brenan  v.  Preston,  2 
DeG.,  M.  &G.  813;  10  Hare  331 ;  Darby  v.  Baines,  9  Id.  369;  South- 
worth  r.  Smith,  27  Conn,  335;  Mustard  v.  Robinson,  52  Maine  54.  Equity 
has  undoubted  jurisdiction  to  enforce  agreements  of  part-owners,  as  in 
other  cases  :  Darby  v.  Baines.  It  will  also  have  jurisdiction  to  aid  by  in- 
junction the  process  of  a  Court  of  Admiralty  in  a  possessory  suit.  Thus 
part-owners,  who  had  taken  possession  of  the  machinery  of  a  steam  vessel, 
so  as  to  prevent  her  sailing  under  a  charter-party,  were  restrained  from 
continuing  that  possession ;  there  appearing  to  be  difficulty  in  the  relief  in 
Admiralty,  either  on  account^of  the  delay,  or  because  the  complainants 
were  in  possession  of  the  vessel :  Brenan  v.  Preston,  2  De  G.,  M.  &  G.  813. 

*  In  Davis  &  Brooks  r.  The  Brig  Seneca,  6  Penn.  L.  J.  213,  it  was  held 
by  the  Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Penn- 
sylvania, that  a  sale  might  be  decreed  in  Admiralty,  Avhere  part-owners 
are  equally  divided.     See  The  Orleans  v.  Phcebus,  11  Peters  175. 
30 


466  ADAMS's    DOCTRINE     OF    EQUITY. 

The  equity  for  assignment  of  dower  originates,  in  like 
manner  with  that  for  partition,  out  of  the  unity  of  pos- 
session of  the  widow  and  heir.^ 

*  See  Phares  v.  Walters,  6  Clarke  (Iowa)  106.  Courts  of  Chancery  have 
a  concurrent  jurisdiction  with  courts  of  law,  in  assigning  dower:  Herbert 
V.  Wren,  7  Cranch  370.  To  entitle  the  wife  to  dower,  the  husband  must 
have  been  seised  of  a  present  freehold,  as  well  as  of  an  estate  of  inheritance  : 
Dunham  v.  Osborn,  1  Paige  634. 

She  is,  in  most  of  the  states,  endowable  of  an  equitable  interest  held  by 
her  husband  in  land,  provided  he  continues  to  hold  it  to  the  time  of  his 
death  :  Ilawley  v.  James,  5  Paige  318 ;  Lawson  v.  Morton,  6  Dana  471  ; 
Hamilton  v.  Hughes,  6  J.  J.  Marsh.  581  ;  Gillespie  v.  Somerville,  3  Stew. 
&  Port.  447  ;  Winn  v.  Elliott,  Hardin  482 ;  Lewis  v.  Moorman,  7  Porter 
522  ;  Shoemaker  v.  Walker,  2  S.  &  R.  554  ;  Stevens  ».  Smith,  4  J.  J.  Marsh. 
64;  Rowton  «.  Rowton,  1  Hen.  &  Munf.  92;  Bailey  v.  Duncan's  Rep.,  4 
Monr.  262;  Fleeson  v.  Nicholson,  Walker  (Miss.)  247  ;  Bowie  v.  Berry,  1 
Md.  Ch.  452;  Thompsons.  Thompson,  1  Jones  (N.  C.)  430;  Stewart  v. 
Heard,  4  Md.  Ch.  319.  See  on  the  other  hand,  Kirby  v.  Dalton,  1  Dev.  Ch. 
195 ;  Milledge  v.  Lamar,  4  Dessaus.  638 ;  Nicoll  v.  Ogden,  29  111.  323, 
where  the  authorities  are  reviewed  ;  also  Gano  v.  Gilruth,  4  Greene  (Iowa) 
453. 

She  is  endowable  of  an  equity  of  redemption  :  Smith  v.  Jackson,  2  Ed. 
Ch.  28;  Titus  v.  Neilson,  5  Johns.  Ch.  452;  Keith  i?.  Trapier,  1  Bailey  Ch. 
63  ;  Bell  V.  Mayor  of  N.  Y.,  10  Paige  49  ;  Evertson  v.  Tappen,  5  Johns.  Ch. 
497  ;  Russell  v.  Austin,  1  Paige  192 ;  Reed  v.  Morrison,  12  S.  &  R.  18 ; 
Kittle  V.  Van  Dyck,  1  Sandf.  Ch.  76  ;  Hartshorne  v.  Hartshorne,  1  Green 
Ch.  349  ;  Criswell  v.  Morris,  1  McCart.  101 ;  Eldridge  v.  Eldridge,  Id.  195  ; 
Heth  V.  Cocke,  1  Rand.  344 ;  Wheatley  v.  Calhoun,  12  Leigh  264 ;  Man- 
ning V.  Laboree,  33  Maine  343 ;  Rossiter  v.  Cossit,  15  N.  H.  38  ;  Mantz  v. 
Buchanan,  1  Md.  Ch.  202;  though  she  joined  in  the  mortgage:  Simonton 
V.  Gray,  34  Maine  50.  See  ante,  193,  note  ;  Davis  v.  Wetherill,  13  Allen 
(Mass.)  60;  but  see  Decker  v.  Hall,  1  Edm.  (N.  Y.)  Sel.  Cas.  279.  Of  a 
rent :  Herbert  V.  Wren,  7  Cranch  370 ;  Williams  v.  Cox,  3  Ed.  Ch.  178. 
Her  right  is  superior  to  the  vendor's  lien  for  purchase-money  :  Clements 
«.  Bostwick,  38  Ga.  1 ;  contra,  Thorn  v.  Ingram,  25  Ark;  52;  Walton  v. 
Hargreaves,  42  Miss.  18  ;  Cooke  v.  Bailey,  Id.  81  ;  see  also.  Wing  r.  Ayre, 
53  Maine  1-38.  Of  land  bought  with  partnership  funds,  if  it  is  not  properly 
the  partnership  property :  Wheatley  v.  Calhoun,  12  Leigh  264.  Of  a  fee 
simple,  determinable  by  executory  devise,  on  her  husband  dying  without 
issue  living  at  the  time  of  his  death :  Evans  v.  Evans,  9  Penn.  St.  190 ; 
Milledge  v.  Lamar,  4  Dessaus.  637.  And  even  of  railroad  shares,  although 
a  part  of  the  amount  due  on  the  stock  has  been  paid  since  the  death  of  the 


OF    ASSIGNMENT    OF    DOWER.  467 

By  the  old  law  the  widow's  right  of  dower  was  a  right 
to  have  assigned  to  her  on  the  death  of  her  husband,  a 

holder  :  Price  v.  Price,  6  Dana  107  ;  Copeland  v.  Copeland,  7  Bush  (Ky.) 
349. 

But  where  there  is  but  a  momentary  seisin  of.  the  husband,  dower  doe 
not  attach :  Mayburry  v.  Brien,  15  Peters  21 ;  BuUard  v.  Bowers,  10  N. 
H.  500 ;  Gammon  v.  Freeman,  31  Maine  243 ;  Foster  v.  Gordon,  49  Id. 
54;  Welsh  v.  Buckins,  9  Ohio  (N.  S.)  331;  Eslava  v.  Lepetre,  21  Ala.  • 
504 ;  Edmonson  v.  Welsh,  27  Id.  578.  The  widow  is  not  endowed  of  land 
given,  and  of  land  received  in  exchange.  See  Stevens  v.  Smith,  4  J.  J. 
Marsh.  64.  Nor  of  a  reversion  :  Blow  v.  Maynard,  2  Leigh  30.  Nor  of  a 
vested  remainder,  where  the  husband  dies  or  aliens  during  the  continuance 
of  the  particular  estate :  Dunham  v.  Osborn,  1  Paige  634 ;  Cocke  v. 
Philips,  12  Leigh  248.  Nor  of  an  estate  of  which  her  husband  was  merely 
trustee  :  Powell  v.  Manufacturing  Co.,  3  Mason  347 ;  Robison  v.  Codman, 
1  Sumner  121 ;  Derush  v.  Brown,  8  Ham.  412 ;  Bartlett  v.  Gouge,  5  B. 
Monr.  152 ;  Cowman  p.  Hall,  3  Gill  &  J.  398 ;  Thompson  v.  Murr.iy,  2  Hill 
Oh.  204,  213  ;  Dean  e.  Mitchell,  4  J.  J.  Marsh.  451 ;  Lenox  v.  Notrebe,  1 
Hempst.  251;  White  v.  Drew,  42  Mo.  561 :  Buffalo,  &c.,  R.  R.  v.  Lampson, 
47  Barb.  (N.  Y.)  533.  She  is  however  entitled  to  dower  until  such  trust 
is  established :  Bailey  v.  West,  41  111.  290.  Nor  of  partnership  property 
as  against  creditors  of  the  firm  :  Greene  v.  Greene,  1  Ham.  535.  See  also 
Sumner  v.  Hampston,  8  Ham.  338  ;  Richardson  v.  Wyatt,  2  Dessaus.  471 ; 
Pierce  v.  Trigg,  10  Leigh  406  ;  Goodburn  v.  Stevens,  1  Md.  Ch.  420 ;  Gal- 
braith  v.  Gedge,  16  B.  Monr.  631 ;  and  post,  246,  note  ;  sed  vide  Smith  v. 
Jackson,  2  Ed.  Ch.  28,  wherein  the  doctrine  of  Greene  r.  Greene,  supra,  is 
questioned.  Nor  of  the  land  of  husband,  found,  before  marriage,  to  be  of 
unsound  mind,  and  who  continued  so  until  death  :  Jenkins  r.  Jenkins,  2 
Dana  102.  Nor  of  the  estate  of  a  joint  tenant:  Mayburry  v.  Brien,  15 
Peters  21.  Nor  of  a  mere  privilege:  Kingman  v.  Sparrow,  12  Barb.  201. 
Nor  of  a  pre-emption  right :  Wells  v.  Moore,  16  Mo.  478.  Nor  of  land  of 
which  her  husband  was  in  possession  under  an  executory  contract,  the 
terms  of  which  he  had  not  complied  with  during  his  lifetime :  Lobdell  v. 
Hayes,  4  Allen  187. 

Nor  shall  the  widow  entitled  to  dower  in  land  sold  by  her  husband,  take 
any  advantage  from  the  improvements  made  by  the  purchaser,  but  may 
from  the  increased  value  of  the  land :  Thompson  v.  Morrow,  5  S.  &  R. 
290  ;  Braxton  v.  Coleman,  5  Call  433  ;  Hazen  v.  Thurber  et  al.,  4  Johns. 
Ch.  604 ;  Bowie  v.  Berry,  1  Md.  Ch.  452 ;  Dashiel  v.  Collier,  4  J.  J.  Marsh. 
603;  Beavers  r.  Smith,  11  Ala.  20;  Mosher  ».  Mosher,  15  Maine  371; 
Powell  r.  Manufacturing  Co.,  3  Mason  347  ;  Dunseth  v.  Bank  U.  S.,  0  Ohio 
77 ;   Manning   v.  Laboree,  33  Maine  343 ;  Johnstown  v.  Van   Dyke,  6 


468  ADAMs's    DOCTRINE    OF    EQUITY. 

third  part  of  the  lands  and  tenements  of  which  he  was 
seised  during  the  marriage  in  fee  simple  or  fee  tail,  and 
which  her  issue  (if  any)  might  by  possibility  have  inhe- 
rited. If  the  thing  of  which  she  was  endowed  were  di- 
visible, her  dower  must  have  been  set  out  by  metes  and 
bounds :  if  it  were  indivisible,  §he  must  have  been  en- 
dowed specially,  as  of  the  third  presentation  to  a  church ; 
^  the  third  toll  dish  of  a  mill ;  the  third  part  of  the  profits 
r*9^4.1  of  an  office,  and  the  like.  Upon  *the  death  of  the 
husband  her  right  to  dower  became  perfect,  but 
unless  her  precise  portion  of  land  has  been  already  speci- 
fied, she  could  not  enter  till  dower  was  assigned.  It  was, 
therefore,  the  duty  of  the  heir,  or  his  guardian,  to  assign 
dower  within  forty  days  after  the  husband's  death.  If 
he  did  not  assign  it,  or  assigned'  it  unfairly,  the  widow 
had  her  remedy  at  law  by  writ  of  dower,  or  of  dower 
unde  mJiil  hahet,  and  the  shetiff*  was  appointed  to  assign  it. 
The  recent  Statute  of  Limitations,  w^hich  abolished  other 
real  actions,  has  retained  these  writs.  (§') 

The  inconveniences  attending  assignment  at  law, 
coupled  with  the  difficulties  to  which  the  dowress  was 
exposed,  by  reason  of  her  evidence  being  in  possession 
of  the  heir,  gave  rise  to  a  concurrent  jurisdiction  in  equity 
for  issuing  a  commission  to  set  out  her  dower,  or  making 
a  reference  to  the  Master  for  the  same  purpose,  (r)^ 

(2)  1  Steph.  Bl.  249-254  ;  3  Steph.  Bl.  657-661  ;  3  &  4  Wm.  4,  c.  27,  s. 
36. 

(r)  Curtis  v.  Curtis,  2  B.  C.  C.  620  ;  Mundy  ».  Mundy,  2  Ves.  J.  122  ; 
Pulteney  v.  Warren,  6  Id.  73,  89 ;  Agar  v.  Fairfax,  17  Id.  533,  552;  Seton 
261. 

McLean  422.  See  also  Fritz  v.  Tudor,  1  Bush  (Ky.)  28.  Yet  see,  as  to 
her  advantage  from  the  land's  rise  in  value,  Tod  v.  Baylor,  4  Leigh  498 ; 
Hale  V.  James,  6  Johns.  Ch.  258  ;  Humphrey  v.  Phinney,  2  Johns.  484. 
A  "widow,  who  was  not  a  citizen  of  the  United  States,  at  the  time  of  her 
husband's  death,  cannot  be  endowed  :  Alsberry  v.  Hawkins,  9  Dana  177. 
*  Courts  of  equity  have  concurrent  jurisdiction  with  courts  of  law,  in  the 


OF    ASSIGNMENT    OF    DOWER.  469 

At  the  same  time  with  the  decree  for  assigning  dower, 
an  account  might,  before  the  late  statute,  3  &  4  Wm.  4, 
c.  27,  s.  40,  have  been  directed  of  the  rents  and  profits 
received  since  the  husband's  decease,  and  payment  of  one- 
third  to  the  widow.  At  common  law  the  demandant  in 
a  writ  of  dower,  as  in  any  other  real  action,  was  not  en- 
titled to  damages  in  respect  of  bygone  rents ;  but  by  the 
Statute  of  Merton  a  special  relief  was  given,  and  it  was 
enacted  that  "  if  a  widow  were  deforced  of  her  dower,  and 
should  subsequently  recover  the  same  by  plea,  she  should 
recover  damages  to  the  amount  of  the  value  of  the  dower 
from  the  death  of  the  husband  to  the  day  of  her  recover- 
ing seisin."  In  accordance  with  this  rule  of  law,  a  dow- 
ress  was  entitled  in  equity  to  an  account  of  rents  and  pro- 
fits from  the  death  of  her  husband ;  and  although  at  law 
her  right  to  damages  would  be  lost  by  the  death  of  the 
heir,  yet  such  death,  if  occurring  pendente  lite,  was  not 
allowed  in  equity  to  '-'prejudice  her  claim. (s)  It  r*oq--i 
is  now  enacted  by  3  &  4  Wm.  4,  c.  27,  s.  40,  that 
no  arrears  of  dower,  nor  any  damages  on  account  of  such 
arrears,  shall  be  recovered  by  action  or  suit  for  a  longer 
period  than  six  years  next  before  the  commencement  of 
such  action  or  suit.^ 

(«)  20  Hen.  3,  c.  1 ;  Curtis  v.  Curtis,  2  B.  C.  C.  620;  Oliver  r.  Richardson* 
9  Vee.  222. 

assignment  of  dower,  yet  they  always  treat  it  as  a  strictly  legal  right,  and 
^re  governed  by  the  same  rules  of  right  with  Courts  of  law,  and  will  not 
permit  an  equity  to  be  interposed  to  defeat  the  dower :  Blain  v.  Harrison, 
11  111.  384;  Potier  v.  Barclay,  15  Ala.  439 ;  Kiddall  v.  Trimble,  1  Md.  Ch. 
143 ;  Gano  ».  Gilruth,  4  Greene  (Iowa)  453  ;  Palmer  r.  Casperson,  2  Green 
(N.  J.)  204;  Brooks  r.  Woods,  40  Ala.  538.  But,  where  the  widow 
applies  for  equitable  relief  in  relation  to  dower  which  a  Court  of  law  can- 
not grant,  she  cannot  resist  an  equitable  defence  as  against  a  purchaser, 
for  a  valuable  consideration,  who  is  ignorant  of  her  claim  of  dower :  Blain 
V.  Harrison,  ut  sup. 

'  A  widow  is  entitled  in  equity  to  an  account  of  the  rents  and  profits 


470  ADAMs's    DOCTRINE    OF    EQUITY. 

The  right  of  the  widow  under  certain  modifications, 
still  exists ;  but  by  the  recent  Dower  Act  it  has  been  re- 
duced, as  to  all  women  married  after  1st  January,  1834, 
to  a  right  of  a  very  .precarious  description,  which  the  hus- 
band may  defeat  by  conveyance  or  devise,  or  by  a  simple 
declaration  that  his  estate  shall  be  exempt,  (t) 

The  equity  for  relief  against  subtraction  or  non-pay- 
ment of  tithes  originates  in  the  fact  that  the  tithes,  with 
the  remaining  produce,  continue  rightfully  in  possession 
of  the  tithe-payer,  who  is  bound  to  set  them  apart  and  to 
account  for  them  to  the  tithe-owner ;  and  it  is  accordingly 
an  equity  against  the  tithe-payer  alone,  and  not  against 
any  third  person  who  may  have  received  the  tithes  under 
an  adverse  claim.  In  this  latter  case  an  ejectment  is  the 
proper  remedy,  (m) 

The  right  to  tithe  is  a  right  capable  of  enforcement  at 
the  common  law,  and  also  to  some  extent  in  the  Ecclesias- 
tical Courts.  The  exact  nature  of  the  right,  and  of  the 
remedies  in  the  common  law  and  Ecclesiastical  Courts,  are 
not  material  to  be  here  considered.  It  is  sufficient  to  ob- 
serve that  the  tithe-owner,  suing  in  those  Courts,  is  in 
some  cases  enabled  by  statute  to  recover  the  treble  value 
of  the  tithe,  and  that,  inasmuch  as  the  treble  liability  is 

(0  3  &  4  Wm.  4,  c.  105. 

{u)  Pulteney  v.  Warren,  6  Ves.  73,  90;  St.  Asaph  v.  Williams,  Jac.  349. 

until  her  dower  is  assigned,  independently  of  the  Statute  of  Merton :  Keith 
V.  Trapiep,  1  Bailey  Eq.  63.  In  Sellinan  v.  Bowen,  8  Gill  &  J.  50,  and 
Steiger  v.  Hillen,  5  Id.  121,  it  was  held  that  she  was  entitled  to 
damages  from  her  husband's  alienee  from  the  time  of  demand  made  by 
her.  In  Tod  v.  Baylor,  4  Leigh  498,  it  was  held  that  she  was  entitled  to 
an  account  of  the  profits  only,  from  the  date  of  the  subpoena.  And  in 
Garton  v.  Bates,  4  B.  Monr.  366  ;  Golden  v.  Maupin,  2  J.  J.  Marsh.  240 ; 
and  Kendall  v.  Honey,  5  Monroe  283,  that  she  was  not  entitled  to  profits 
even  from  the  commencement  of  the  suit.  The  widow  is  entitled  to  an  ac- 
count of  rents  and  profits,  only  from  the  time  of  assignment,  where  the 
husband  does  not  die  seised :  Bolser  ».  Cushman,  34  Maine  348. 


OF     SUBTRACTION    OF    TITHES.  471 

in  the  nature  of  a  forfeiture,  he  is  required  to  waive  it  if 
he  sues  in  equity,  (y) 

The  relief  prayed  by  a  bill  for  tithes  may  be  resisted 
in  two  ways:  the  defendant  may  either  deny  the  plain- 
tiff's title  ah  originc,  alleging  an  adverse  right  in  some 
third  *person,  and  establishing  it  by  proof  of  an  r^^nop-i 
actual  grant,  or  by  presumption  arising  from  long 
enjoyment  ;(w)  or  he  may  admit  a  primary  title  in  the 
plaintiff,  and  insist  on  an  absolute  or  partial  discharge, 
either  by  a  prescription  de  non  decimando,  which  is  when 
lands  are  absolutely  discharged  from  tithe,  on  the  ground 
that  from  time  immemorial  they  have  not  been  liable  ;  or 
by  a  prescription  de  modo  decimandi,  commonly  called  a 
modus,  which  is  where  by  immemorial  usage,  a  particular 
mode  of  tithing  has  been  allowed,  different  from  the  pay- 
ment of  a  tenth  in  kind ;  or  by  a  composition  real,  which 
is  an  agreement  made  between  the  owner  of  lands  and  the 
parson  or  vicar,  with  the  consent  of  the  ordinary  and  patron 
that  such  lands  shall  be  discharged  from  tithe  by  reason 
of  land,  or  other  real  recompense,  given  to  the  person  in 
their  stead.  (3:)  If  the  primary  title  is  disputed,  it  must 
be  established  in  a  regular  action  at  law,  before  the  equity 
for  an  account  can  arise;  but  if  that  right  is  admitted, 
and  met  by  a  specific  ground  of  exemption,  e.  g.,  a  modus 
or  prescription.<7e  non  decimando,  the  Court  may  either  de- 
cide the  question  itself,  or  may  refer  it  to  a  jury  on  a 
feigned  issue,  (y) 

There  is  also  a  cross  equity  for  establishing  a  modus 
against  the  tithe-owner,  where  the  tithe-payer  has  been 
disturbed  by  proceedings,  either  in  equity  or  elsewhere,  to 
enforce  payment  in  kind.     But  if  the  rector  insists  on 

(»)  3  Steph.  Bl.  123-125,  708.  (ir)  Id.  12.>-]27. 

(x)  3  Steph.  Bl.  127-133. 

(y)  Knight  ».  Waterford,  11  CI.  &  F.  657 :  Raine  v.  Cairns,  4  Hare  327 
333;  12  CI.  &F.  833. 


472  ADAMS's    DOCTRINE    OF     EQUITY. 

trying  the  existence  of  the  modus  at  law,  he  is  entitled 
to  demand  an  issue  for  that  purpose.  (0) 

The  equitable  jurisdiction  over  tithes  and  moduses  was 
originally  vested  in  .the  Court  of  Exchequer.  That  of  the 
Court  of  Chancery  over  the  same  subject  is  of  much  later 
origin,  or  at  least  was  a  matter  of  controversy  to  a  much 
later  period,  and  was  not  firmly  established  until  after  the 
r*2S71  ^I^^^to^'^^tion.  Since  that  period  the  Court  of 
Chancery  has  always  been  held  to  have  a  concur- 
rent authority  with  the  Exchequer;  and  when  the  equit- 
able jurisdiction  of  that  Court  was  abolished,  it  obtained 
the  sole  jurisdiction  on  the  subject. 

The  jurisdiction  was  originally  exercised  without  re- 
ference to  the  value  of  the  tithe.  But  by  a  recent  stat- 
ute it  is  confined  to  cases  where  the  yearly  value  is  up- 
wards of  10/.,  or  where  the  actual  title  to  the  tithe, 
composition,  or  modus,  or  the  actual  liability  or  exemp- 
tion of  the  property  sought  to  be  charged,  is  bond  fide  in 
question,  {a)  And  by  the  gradual  operation  of  the  Tithe 
Commutation  Acts,  for  converting  all  tithes  into  fixed  rent- 
charges,  recoverable  by  distress  and  entry,  it  is  becoming 
practically  extinct,  (b) 

The  equity  for  ascertainment  of  boundary  arises  when 
lands  are  held  in  severalty  by  independent  proprietors, 
but  the  boundaries  have  been  confused  by  the  misconduct 
of  the  defendant,  or  of  those  under  whom  he  claims.^    The 

(2)  Gordon  v.  Simkinson,  11  Ves.  509 ;  2  Dan.  C.  P.  1056 ;  1  Madd.  C. 
P.  334. 

(a)  5  &  6  Wm.  4,  c.  74 ;  4  &  5  Vict.  c.  36 ;  3  Steph.  Bl.  709. 

(6)  6  &  7  Wm.  4,  c.  71 ;  1  Vict.  c.  69  ;  1  &  2  Vict.  c.  64 ;  2  &  3  Vict.  c. 
62 ;  3  &  4  Vict.  c.  15 ;  5  &  6  Vict.  c.  54  ;  3  Steph.  Bl.  133,  137. 

^  See  Mayor,  &c.,  of  Basingstoke  v.  Lord  Bolton,  1  Drew.  170;  17 
Jur.  57. 

A  court  of  equity  has  no  jurisdiction  to  fix  boundaries  of  legal  estates, 
unless  some  equity  is  superinduced  by  the  act  of  the  parties:  Norris's 
Appeal,  64  Penn.  St.  275 ;  Tillmes  v.  Marsh,  67  Id.  507. 


ASSIGNxMENT    OF    BOUNDARY.  473 

mere  confusion  of  boundary  will  not  create  it,  for  the  fact 
that  a  man  cannot  ascertain  his  property  does  not  consti- 
tute an  equity  against  another  person.  But  it  must  be 
shown  that  the  confusion  has  been  caused  by  the  defend- 
ant's misconduct,  or  by  the  misconduct  of  those  under 
whom  he  claims.  As,  for  example,  where  a  tenant  has 
confounded  the  boundaries  to  prevent  a  distress  ;  or  a  copy- 
holder has  confounded  the  copyholds  with  his  own  freehold. 
In  this  case  the  Court  will  issue  a  commission  to  ascertain 
the  boundaries,  or  will  set  out  an  equivalent  portion  of  the 
lands  in  the  clefendant's  possession.  It  will,  at  the  same 
time,  if  necessary,  decree  an  account  of  rents  and  profits,  (c) 
The  equity  for  payment  of  rent  arises  where,  by  con- 
fusion of  boundaries,  *by  fraudulent  removal  of  r*ooo-| 
goods,  or  by  the  incorporeal  nature  of  the  here- 
ditaments charged,  the  remedy  at  law  by  distress  is  gone, 
without  default  in  the  owner  of  the  rent.  A  bill  seeking 
this  relief  may  be  supported  merely  by  proof  of  long-con- 
tinued payment,  and  is  then  termed  a  bill  founded  on  the 
sokt.  The  same  remedy  has  been  given  where  the  days 
on  which  the  rent  was  payable  were  uncertain,  and  even 
where  the  nature  of  the  rent  ( of  which  there  are  many 
kinds  at  law)  was  unknown,  (d^)^ 

(c)  Wake  v.  Conyers,  1  Eden  331  ;  Speer  v.  Crawter,  2  MeBiv.  410  ;  Mil- 
ler t'.  Warmington,  1  J.  &  W.  464.  "^ 

(cZ)  Duke  of  Bridgewater  v.  Edwards,  6  B.  P.  C.  by  Toml.  368  ;  Holder 
V.  Chambury,  3  P.  Wms.  256 ;  Benson  v.  Baldwyn,  1  Atk.  598  ;  Bouverie 
V.  Prentice,  1  B.  C.  C.  200 ;  Duke  of  Leeds  v.  New  Radnor,  2  Id.  338 ; 
Attorney -General  v.  Jackson,  11  Ves.  365;  [Mayor,  &c.  of  Basingstoke  t?. 
Lord  Bolton,  17  Jur.  57  ;  1  Drew.  170.] 


^  Although  a  Court  of  chancery  will  not  ordinarily  take  jurisdiction  of 
a  case  of  rent,  yet  when  the  time  of  payment,  or  the  amount  to  be  paid  is 
uncertain,  or  when  the  distress  is  evaded  or  obstructed  by  fraud,  the  Court 
will  take  jurisdiction,  and  give  relief:  Dawson  v.  Williams,  1  Freem.  Ch. 
99.  So  where  the  lease  has  been  lost :  Lawrence  v.  Hammitt,  3  J.  J.  Marsh. 
287. 


474  ADAMS'S    DOCTRINE    OF    EQUITY 


[*239]  *CH AFTER   III, 


OF    PARTNERSHIP. 

The  equity  for  winding  up  the  business  of  a  partner- 
ship originates  in  the  peculiar  character  of  that  relation- 
ship, as  involving  not  merely  a  community  of  interest, 
but  the  employment  of.  a  common  stock,  whether  con- 
sisting of  property  or  of  mere  labor  and  skill,  in  some 
common  undertaking,  with  a  view  to  a  common  pro- 
fit, (a)  ^     In  order  that  such  common  profit  may  be  ob- 

(a)  2  Steph.  Bl.  150 ;  Coope  v.  Eyre,  1  H.  Blacks.  37. 

^  The  law  of  partnership  is  a  br^inch  of  the  law  of  agency,  each  partner 
holding  towards  the  other  the  double  relation  of  principal  and  agent.  This 
is  expressed  with  great  clearness  in  Cox  v,  Hickman,  8  H.  Ld.  Cas.  268. 
In  that  case  Lord  Cranworth,  after  commenting  upon  the  insufficiency  of 
the  test  usually  applied,  viz.,  that  participation  in  profits  is  a  criterion  of 
partnership,  went  on  to  observe  :  "  It  is  not  strictly  correct  to  say  that 
a  partner's  right  to  share  in  the  profits  makes  him  liable  to  the  debts  of 
the  trade.  The  correct  mode  of  stating  the  proposition  is  to  say  that  the 
same  thing  which  entitles  him  to  the  one  makes  him  liable  to  the  other, 
namely,  the  fact  that  the  trade  has  been  carried  on  in  his  behalf,  i.e.,  that 
he  stood  in  the  relation  of  principal  towards  the  persons  acting  ostensibly 
as  the. traders,  by  whom  the  liabilities  have  been  incurred,  and  under 
whose  management  the  profits  had  been  made."  A  careful  attention  to 
the  rules  as  stated  by  Lords  Cranworth  and  Wensleydale,  in  this  case,  will 
help  to  solve  the  question  of  partnership  or  no  partnership  in  very  many 
instances.  See  also,  Bullen  v.  Sharp,  L.  R.  1  Com.  Pleas  86,  and  the  note 
to  Waugh  V.  Carver,  1  Smith's  Lead.  Cas.  1174  (6  Am,  ed.).  Practically, 
the  general  rule  is  that  participation  in  profits,  qua  profits,  will  constitute 
a  person  a  partner  as  to  third  parties :  Motley  v.  Jones,  3  Ind.  Ch,  144 ; 
Turner  v.  Bissell,  14  Pick.  194  ;  Simpson  v,  Feltz,  1  McCord  Ch.  218  ;  Pur- 


OF    PABTNERSHIP.  475 

tained,  it  is  essential  that  there  be  a  capacity  to  contract 
partnership  debts,  and  to  acquire  partnership  assets,  in- 
dependent of  the  debts  and  assets  of  the  individual  part- 


viance  v.  McClintee,  6  S.  &  R.  259  ;  Dob  v.  Halsey^  16  Johns.  34 ;  Brown 
V.  Higginbotham,  5  Leigh  583  ;  Bromley  v.  Elliott,  38  N.  H.  301 ;  Julio  v. 
Ingalls,  1  Allen  41  :  Yoorhees  v.  Jones,  5  Dutch.  270 :  Goldsmith  v.  Ber- 
thold,  24  IIow.  536 :  Manhattan  Brass  Co.  v.  Sears,  45  N.  Y.  797.  But  a 
share  in  the  profits,  as  a  measnrie  of  compensation  for  serrices  and  labor, 
does  not  render  the  party  receiving  the  compensation  a  partner.  There 
must  be  an  interest  in  the  profits  as  profits:  Waugh  v.  Carver  (supra); 
Ogden  V.  Astor,  4  Sandf.  S.  C.  311 ;  Reed  v.  Murphy,  2  Greene  (Iowa)  574; 
Kerr  r.  Potter,  6  Gill  404 ;  Potter  v.  Moses,  1  R.  I.  430 ;  Stocker  v.  Brock- 
elbank,  3  M.  &  G.  250 ;  Bull  v.  Schuberth,  2  Md.  38 ;  Hodgman  v.  Smith, 
13  Barb.  302;  Pierson  v.  Steinmyer,  4  Rich.  389;  Clarke  v.  Gilbert,  32 
Barb.  576.  And  see  Newmen  v.  Bean,  1  Foster  93 ;  Dunham  v.  Rogers, 
1  Penn.  St.  255 ;  Pattison  v.  Blanchard,  1  Selden  186 ;  Merrick  v.  Gordon, 
20  N.  Y.  93  ;  Radcliffe  v.  Rushworth,  33  Beav.  484;  Parker  v.  Fergus,  43 
111.  437  ;  Merwin  r.  Playford,  3  Rob.  (N.  Y.)  702 ;  Conklin  v.  Barton,  43 
Barb.  (N.  Y.)  435:  Lentner  v.  Milliken,  47  111.  178;  Edwards  v.  Tracy, 
62  Penna.  St.  374 ;  but  see  Morgan  v.  Steams,  41  Verm.  398. 

A  joint  stock  company  is  a  partnership,  the  capital  of  which  is  divided 
or  agreed  to  be  divided  into  shares,  so  as  to  be  transferable  without  ex- 
press consent  of  all  the  partners :  Hedge  &  Horn's  Appeal,  63  Penn.  St. 
273. 

In  England  it  is  now  provided  by  the  Stat.  28  &  29  Vict.  c.  86,  that  an 
advance  of  money,  on  a  contract  to  receive  a  share  of  the  profits,  is  not  to 
constitute  the  lender  a  partner  ;  and  that  the  remuneration  of  agents,  Ac, 
by  shares  of  profits,  shall  not  render  them  partners. 

An  association  of  persons  for  a  special  purpose,  distinct  from  making 
profits,  is  not  a  partnership  :  Caldecott  v.  Griffith,  8  Exch.  898  ;  Bright  v. 
Hutton,  3  H.  L.  Cas.  341 ;  Flemyng  ».  Hector,  2  M.  &  W.  172 ;  Irvine  v. 
Forbes,  11  Barb.  S.  C.  587;  Thomas  ».  Ellmaker,  1  Pars.  Eq.  98.  See 
also  Pomeroy  v.  Sigerson,  22  Missouri  177  ;  "Wright  v.  Cumsty,  41  Penn. 
St.  102  ;  Fay  v.  Noble,  7  Gushing  188 ;  Parsons  on  Partnership  42,  note  [b). 

There  may  be  a  partnership  for  dealing  in  real  estate :  Dalton  City  Co. 
V.  Dalton  Manuf.  Co.,  33  Ga.  243.  Therefore,  land  Ixtught  with  partner- 
ship money,  for  partnership  purposes,  and  applied  to  those  purposes,  will 
in  equity  be  treated  as  a  partnership  fund :  Clegett  r.  Kilbourne,  1  Black 
(S.  C.)  346 ;  Wallis  r.  Freeman,  35  Verm.  44 ;  Abbott's  Appeal,  50  Penn. 
St.  234  ;  3  Kent's  Com.  37  ;  Parsons  on  Partnership  369 ;  infra,  page  246, 
note. 


476  ADAMS's    DOCTRINE    OF    EQUITY. 

ners,  the  ultimate  balance  of  which  is  the  profit  or  loss  of 
the  firm.  And,  therefore,  before  the  interest  of  an  indi- 
vidual partner  can  be  known,  an  account  must  be  taken 
of  the  business,  the  assets,  and  the  liabilities,  so  that  the 
divisible  surplus  may  be  ascertained. 

The  common  law  Courts  cannot  take  this  account.  The 
mere  existence  of  a  partnership  does  not  necessarily  ex- 
clude this  jurisdiction ;  for  it  may  happen  that  litigation 
exists  between  the  partners,  with  which  they  are  fully 
competent  to  deal.  Such,  for  example,  is  the  case  where 
the  transaction  in  respect  of  which  relief  is  sought  is 
wholly  independent  of  the  partnership  ;  or  is  merely  pre- 
liminary to  it ;  or  consists  in  the  breach  of  a  covenant  or 
r*24-m  ^^  ^^  undertaking  *to  perform  some  specific  act, 
so  that  the  decision  is  unconnected  with  the  part- 
nership account  ;^  or  where  a  dissolution  has  already  taken 
place,  and  the  balance  of  account  has  been  struck,  so  that 
further  investigation  is  not  requisite.  But  if  it  be  neces- 
sary to  investigate  the  account,  it  cannot  be  done  at  law, 
unless  by  the  adoption  of  the  action  of  account,  the  incon- 
veniences of  which  have  been  already  explained.  (^)^ 

(6)  3  Sfceph.  Bl.  532;  Smith's  Merc.  Law  38 ;  Foster  v.  Allanson,  2  T. 
R.  479 ;  Jackson  v.  Stopherd,  4  Tyrw.  330 ;  Elgie  ».  Webster,  5  M.  &  W. 
518 ;  Brown  v.  Tapseott,  6  Id.  119. 

^  Kinloeh  v.  Hamlin,  2  Hill  Ch.  19  ;  Duncan  v.  Lyon,  3  Johns.  Ch.  360 ; 
Hunt  V.  Gookin,  6  Verm.  462.  See  Cross  v.  Cheshire,  7  Exch.  43.  In 
Addams  v.  Tutton,  39  Penn.  St.  447,  it  was  held  that  covenant  would  lie 
for  a  breach  of  partnership  articles  by  a  wrongful  dissolution,  and  by 
wrongful  acts  tending  to  that  dissolution. 

*  Where  there  is  a  distinct  promise  to  pay  an  ascertained  sum,  as  where 
a  balance  of  accounts  is  struck,  assumpsit  will  lie  between  partners :  Hall 
V.  Stewart,  12  Penn,  St.  213;  Hamilton  v.  Hamilton,  18  Id.  20;  Hal- 
derman  ».  Ilalderman,  1  Hempstead  557;  see  Morrow  r,  Kiley,  15  Ala. 
710 ;  Gridley  v.  Dole,  4  Comst.  486  ;  Miller  v.  Andress,  13  Ga.  366  ;  Knerr 
V.  Hoffman,  65  Penn.  St.  126 ;  and  where  an  account  stated,  resulting  in 


OF    PARTNERSHIP.  477 

If  a  dissolution,  as  well  as  an  account,  be  sought,  the 
common  law  jurisdiction  is  altogether  excluded.^ 

The  incapacity  thus  existing  in  the  Courts  of  law  con- 
fers a  jurisdiction  on  the  Court  of  Chancery ;  and  accord- 
ingly, if  the  partnership  has  been  already  dissolved,  or 
if  there  be  misconduct  or  incompetency  in  either  part- 
ner sufficient  to  warrant  its  dissolution,  a  bill  will  lie  to 
have  the  assets  converted  into  money,  the  debts  dis- 
charged out  of  their  produce,  and  the  surplus  distributed 
among  the  partners,  or  the  deficiency  made  good  by  con- 
tribution, (c) 

There  may  of  course  be  grounds  for  relief  under  general 
equities,  at  the  suit  of  one  partner  against  another,  inde- 
pendently of  this  special  equity  for  taking  the  account,^ 

(c)  Ex  parte  Ruffin,  6  Yes.  119  5  Ex  parte  Williams,  11  Id.  3. 

such  balance,  is  retained  by  a  partner  without  objection,  a  promise 
will  be  implied,  as  in  other  cases:  Van  Amringe  r.  Ellmaker,  4  Penn. 
St.  281. 

^  In  matters  of  difficulty  or  controversy  between  partners  it  is  now  most 
usual  to  resort  to  a  Court  of  equity  for  their  final  adjudication  and  settle- 
ment :  Bracken  v.  Kennedy,  3  Scam.  558 ;  Holyoke  v.  Mayo,  50  Maine 
385:  and  see  Raymond  v.  Crane,  45  X.  II.  201.  It  will  entertain  juris- 
diction, although  account  or  other  action  would  lie  between  the  parties : 
Gillett  V.  Hall,  13  Conn.  426 ;  Cunningham  v.  Littlefield,  1  Ed.  Ch.  104. 
And  although  one  partner  cannot  bind  the  firm  by  deed :  Donaldson  ». 
Kendall,  2  Ga.  Decis.  227  ;  Napier  v.  Catron,  2  Humph.  534  ;  Dickinson  v. 
Legare,  1  Dessaus.  537;  Skinner  v.  Dayton,  19  Johns.  513;  Fisher  ». 
Tucker,  1  McCords  Ch.  170  ;  Williams  v.  Hodgson,  2  Har.  &  Johns.  474 ; 
yet  in  some  cases  a  Court  of  equity  will  regard  a  debt  secured  by  the 
specialty  of  one  partner  as  a  simple  contract  debt,  and  hold  all  the  part- 
ners bound  for  it.  See  Gait  v.  Calland,  7  Leigh  594  :  McNaughton  v. 
Partridge,  1 1  Ohio  223  ;  Christian  v.  Ellis,  1  Gratt.  396  ;  Anderson  r. 
Tompkins,  1  Brock.  456  ;  Kyle  v.  Roberts,  6  Leigh  495  ;  James  v.  Bost- 
wick,  Wright  142. 

'  A  Court  of  equity  may  compel  specific  execution  of  a  partnership  con- 
tract, and  may  restrain  one  partner  from  persisting  in  a  course  jeopardiz- 
ing the  rights  of  another,  or  depriving  him  of  his  due  share  in  the  direc- 


[*241]    ,^ 


478  ADAMS's    DOCTRINE    OF    EQUITY. 

e.  g.,  for  performance  of  covenants  in  the  partnership 
deed,  for  recovery  of  assets  fraudulently  withdrawn,  for 
an  injunction  against  threatened  misapplication  of  assets, 
and  the  like ;  and  if  the  misconduct  of  a  partner  has  been 
knowingly  abetted  by  a  stranger,  the  abettor  may  be  also 
sued  in  equity,  for  the  injured  partners  cannot  sue  him  at 
law,  because  the  fraudulent  co-partner  must  be  joined  as 
a  plaintiff  in  the  action.^  The  subject,  however,  of  these 
general  equities  is  not  now  under  consideration.  Our 
present  subject  is,  the  special  equity  for  winding  up  a 
partnership  on  the  ground  that  the  account  cannot  be  taken 
at  law.  And  the  essential  characteristic  of  this 
^equity  is  that  it  contemplates  the  winding  up 
of  the  partnership,  and  not  its  continuance.  A  bill  will 
not  lie  for  an  account  and  distribution  of  the  profits,  which 
contemplates  at  the  same  time  a  continuance  of  the  busi- 
ness ;  for  if  a  decree  could  be  obtained  for  such  an  ac- 
count, the  result  would  fluctuate  in  each  successive  year, 
and  would  only  be  settled  when  the  partnership  was  at 
an  end.^     The  ordinary  course  is  to  pray  that  the  part- 

tion  of  the  business :  see  Gillett  v.  Hall,  13  Conn.  426  ;  Pirtle  v.  Penn,  3 
Dana  248. 

So  where  one  of  the  parties  to  an  agreement  of  partnership  has  been  in- 
duced to  enter  into  it  upon  fraudulent  representations,  equity  will  inter- 
fere and  declare  it  void,  except  as  against  creditors  :  Hynes  v.  Stewart,  10 
B.  Monr.  429  ;  Fog  v.  Johnstone,  27  Ala.  432. 

^  Where  the  same  person  is  a  member  of  two  distinct  firms,  one  of  those 
firms  cannot  sue  the  other  at  law,  even  on  an  account  stated,  because  one 
cannot  sue  himself;  the  remedy  is  in  equity:  Calvit  v.  Markham,  3  How, 
(Miss.)  343.  In  Pennsylvania,  such  suit  lies  at  law  by  statute  ;  with  this 
restriction,  that  no  act  or  declaration  of  one  party  shall  be  given  in  evi- 
dence in  his  own  favor  to  the  prejudice  of  others :  Purdon's  Digest,  tit. 
Partnership.  See,  also,  for  the  construction  of  it,  Hepburn  v.  Certs,  7 
Watts  300 ;  Pennock  v.  Swayne,  6  W.  &  S.  231 ;  Tassey  v.  Church,  Id. 
465  ;  Meconkey  v.  Rodgers,  Bright.  R.  450. 

*  It  has  often  been  held  that  there  can  be  no  division  of  partnership  pro- 


OF    PARTNERSHIP.  479 

nership  may  be  dissolved,  and  the  surplus  assets  distri- 
buted; but  this  practice  has  been  relaxed  in  favor  of 
joint  stock  companies,  and  of  other  numerous  partner- 
ships, and  bills  have  been  sustained  which  asked  more 
limited  relief,  viz.,  that  the  assets  of  an  abandoned  or  in- 
solvent partnership  might  be  collected  and  applied  in 
discharge  of  the  debts,  leaving  questions  of  distribution 
and  contribution  as  between  the  partners  entirely  open 
for  future  settlement.  (<;?) 

The  first  topic  which  occurs  in  examining  this  equity 
is,  as  to  the  circumstances  which  will  cause  or  warrant  a 
dissolution. 

A  dissolution  may  be  caused  in  various  ways :  first, 
by  mere  effluxion  of  the  time,  or  completion  or  extinc- 
tion of  the  business  for  which  the  partnership  was  cre- 
ated ;  secondly,  by  mutual  agreement  of  all  the  partners, 
or,  if,  no  specific  term  of  duration  has  been  fixed,  by  the 
declaration  of  any  one  partner  that  the    connection   is 

{d)  Goodman  v.  WHitcomb,  1  J.  &  W.  572 ;  Marshall  v.  Colman,  2  Id. 
266  ;  Glassington  r.  Thwaites,  1  S.  &  S.  124 ;  Loscombe  v.  Russell,  4 
Sim.  8  ;  AVallworth  v.  Holt,  4  M.  &  C.  619;  Richardson  v.  Hastings,  7 
Bea.  301,  323  ;  Apperly  r.  Page,  1  Ph.  779  ;  Fairthorne  v.  Weston,  3  Hare 
387  ;  infra,  Pleading,  Parties. 

perty  until  all  the  accounts  of  the  partnership  have  been  taken,  and  the 
clear  interest  of  each  partner  ascertained  ;  that  the  chancellor  may,  in  a 
proper  case,  dissolve  the  partnership,  but  cannot  aid  in  carrying  it  on: 
Baird  v.  Baird,  1  Dev.  &  Bat.  524 ;  McRae  r.  McKenzie,  2  Id.  232 ;  Cam- 
blatt  V.  Tupery,  2  La.  Ann.  10 ;  Kennedy  v.  Kennedy,  3  Dana  240.  But 
in  Pennsylvania,  it  has  been  decided  that  a  Court  of  equity  will  entertain 
a  bill  for  an  account  by  one  partner  against  the  gther,  although  the  bill 
does  not  contemplate  a  dissolution  of  the  partnership :  Hudson  v.  Barret, 
1  Parsons's  Sel.  Eq.  Cas.  414.  Equity  will  enjoin  one  partner  from  vio- 
lating the  rights  of  his  copartner  in  partnership  matters,  although  no  dis- 
solution of  the  partnership  be  contemplated:  Marble  Co.  ».  Ripley,  10 
Wall.  (U.  S.)  339. 


480  ADAMS's    DOCTKINE    OF    EQUITY. 

dissolved; (e)^  and  thirdly,  by  the  death  or  bankruptcy  of 
a  partner,  or  by  an  execution  against  him,  followed  by 
seizure  and  sale  of  his  share.^     And  when  a  dissolution 

(e)  Peacock  v.  Peacock,  16  Ves.  49  ;  Crawshay  v.  Maule,  1  Sw.  495,  508 ; 
Featherstonhaugh  v.  Fenwick,  17  Ves.  298. 

'  Even  where  a  partnership  is  formed  for  a  definite  period,  it  is  said,  it 
may  be  dissolved  at  the  pleasure  of  one  of  the  partners  :  Skinner  v.  Day- 
ton, 19  Johns.  538  ;  Mason  v.  Connell,  1  Whart.  381  ;  Slemmer's  Ap.,  58 
Penn.  St.  168  ;  sed  vide  Bishop  v.  Breckles,  1  Hoif.  Ch.  534.  A  dissolu- 
tion of  a  partnership,  by  sealed  articles,  by  agreement  before  the  time 
limited,  is  good,  though  not  under  seal:  Wood  v.  Gault,  2  Md.  Ch.  433. 

But  a  partnership  is  to  be  considered  in  existence  till  it  is  wound  up, 
and  the  p<artner  in  possession  o.f  the  place  of  business  of  the  partnership, 
has  no  right,  by  giving  notice  of  dissolution,  to  exclude  immediately  the 
other  partner  therefrom,  or  from  the  disposal  of  the  effects :  Roberts  v. 
Edenhart,  1  Kay  148.  And  see  Western  Stage  Co.  v.  Walker,  2  Clarke 
504. 

One  partner  may  sell  the  whole  of  the  partnership  property,  if  the  sale 
be  free  from  fraud  on  the  part  of  the  purchaser,  and  such  sale  dissolves 
the  partnership,  although  the  term  has  not  expired :  Whitton  v.  Smith,  1 
Freem.  Ch.  231 ;  Deckard  v.  Case,  5  Watts  2:2.  The  latter  case  differing 
as  to  the  effect  of  such  sale ;  sed  vide  Hewitt  v.  Sturdevant,  4  B.  Monr. 
453. 

As  to  his  power  to  make  an  assignment  for  the  benefit  of  the  firm  cred- 
itors, see  McCullough  v.  Somerville,  8  Leigh  415 ;  Harrison  v.  Sterry,  5 
Cranch  289  ;  Egberts  v.  Wood,  3  Paige  517  ;  Robinson  v.  Crowder,  4  Mc- 
Cord  L.  R.  519;  Havens  v.  Hussey,  5  Paige  30  ;  Hitchcock  v.  St.  John,  1 
Hoff.  Ch.  511 ;  Mills  v.  Argall,  6  Paige  577  ;  Pearpoint  v.  Graham,  4  W.  C. 
C.  R.  232 ;  Graser  v.  Stellwagen,  25  N.  Y.  315  ;  Sheldon  v.  Smith,  28  Barb. 
599 ;  Ormsbee  v.  Davis,  5  !R.  I.  442 :  Cullum  v.  Bloodgood,  1 5  Ala.  34 ; 
Clark  V.  Wilson,  19  Penn.  St.  414.  In  Deming  v.  Colt,  3  Sandf  S.  C.  284, 
it  was  decided,  upon  much  deliberation,  that  an  assignment  by  one  partner, 
without  the  consent  of  the  rest,  where  they  are  present,  and  actually  en- 
gaged in  the  business  of  partnership,  was  invalid  ;  and  this  is  undoubtedly 
the  better  and  sounder  opinion :  Hook  v.  Stone,  34  Mo.  329 ;  Welles  v. 
March,  30  N.  Y.  344.  Ja  Forkner  v.  Stuart,  6  Gratt.  197,  however,  such 
an  assignment,  in  the  absence  of  one  partner,  was  held  good.  See  also, 
Kemp  V.  Carnley,  3  Duer  1 ;  Norris  v.  Vernon,  8  Rich.  13  ;  National  Bank 
v.  Sackett,  2  Daly  (N.  Y.)  395. 

^  By  the  general  rule  of  law,  every  partnership  is  dissolved  by  the  death 
of  one  of  the  partners,  and  the  dissolution  is  so  effectual,  that  want  of 


OF    PARTNERSHIP.  481 

is  thus  effected,  the  executor  or  administrator  of  the 
partner,  the  assignee  under  his  fiat,  or  the  sheriff's  vendee, 
becomes  entitled  to  *his  interest  in  the  partner-    poio-i 
ship  assets,  as  it  shall  appear  on  adjustment  of 
the  partnership  account.  (/)^ 

A  partnership  may  also  he  in  some  sense  dissolved  by 
sale  of  a  partner's  share,  if  such  sale  be  authorized  by 
the  deed  of  partnership.^     The  ordinary  rule  is  that  no 

(/)  Taylor  v.  Fields,  4  Ves.  396  ;  Young  v.  Keighly,  15  Id.  557  ;  Button 
V.  Morrison,  17  Id.  193  ;  Re  Wait,  IJ.  &  W.  585 ;  Habershon  v.  Blurton, 
1  De  G.  &  S.  121. 

notice  of  it  does  not  have  the  effect  of  making  the  estate  of  the  deceased 
partner  liable  to  debts'contracted  by  the  surviving  partners,  or  for  their 
misconduct :  Caldwell  v.  Stileman,  1  Rawle  212,  216  ;  Williamson  v.  Wil- 
son, 1  Bland  418.  But  a  partner  may,  by  will,  provide  that  the  partner- 
ship shall  continue  after  his  death,  and  if  it  be  assented  to  by  the  surviving 
partner,  it  becomes  obligatory :  Burwell  v.  Mandeville,  2  Howard  U.  S. 
560.  And  see  Laughlin  v.  Lorenz's  Admr.,  48  Penn.  St.  275 ;  Davis  v. 
Christian,  15  Grattan  11.  The  surviving  partner  has  a  reasonable  time  to 
close  up  the  affairs :  Tillotson  v.  Tillotson,  34  Conn.  335 ;  and  he  is  not 
entitled  to  compensation  for  so  doing  :  Ibid. 

*  As  to  dissolution  by  the  seizure  and  sale  of  one  partner's  share,  see 
Moody  t".  Payne,  2  Johns.  Ch.  548 ;  Place  v.  Sweetzer,  16  Ohio  142 ;  Brew- 
ster V.  Hammet,  4  Conn.  540 ;  Sitler  v.  Walker,  1  Freem.  Ch.  77;  Doner 
V.  Stauffer,  1  Penna.  R.  198 ;  Phillips  v.  Cook,  24  Wend.  389 ;  Renton 
V.  Chaplain,  1  Stockt.  62. 

*  A  voluntary  assignment,  by  one  partner,  of  all  his  interest  in  the  con- 
cern, dissolves  the  partnership,  although  the  articles  provide  that  the  part- 
nership is  to  continue  until  two  of  the  contracting  parties  shall  demand  a 
dissolution :  Marquand  v^  W.  Y.  Man.  Co.,  17  Johns.  525 ;  Whitton  v. 
Smith,  1  Freem.  Ch.  231 ;  see,  also,  Mason  v.  Connell,  1  Whart.  381 ;  Con- 
well  r.  Sandidge,  5  Dana  213;  Horton's  App.,  13  Penn.  St.  67;  Ormsbee 
V.  Davis,  5  R.  I,  422.  See,  also,  Coope  p.  Bowles,  42  Barb.  (N.  Y.) 
87  ;  Eden  v.  Williams,  36  111.  252.  A  partner  may,  however,  assign  his 
interest  to  another,  who,  being  substituted,  may,  after  the  expiration  or 
dissolution  of  the  partnership,  maintain  a  bill  for  his  share  of  the  profits : 
Mathewson  v.  Clarke,  6  Howard  U.  S.  122.  So  a  partnership  may  be  dis- 
solved by  the  act  of  God,  by  the  act  of  the  government,  as,  by  a  war  be- 
tween the  countries  of  the  partners,  or  by  some  of  the  members  becoming 
a  body  politic :  The  Cape  Sable  Co's  Case,  3  Bland  674. 

31 


V 
482  ADAMS's    DOCTRINE    OF    EQUITY. 

partner  can  sell  or  dispose  of  his  share  without  the  con- 
currence of  the  rest.  He  may  alien  his  interest  in  the 
surplus  to  be  ascertained  by  taking  the  partnership  ac- 
count, but  he  cannot  substitute  his  alienee  to  the  position 
of  a  partner,  nor  give  him  any  right  to  interfere  in  the 
business.  A  right,  however,  to  alien  the  share  itself  may 
be,  and  in  the  case  of  very  large  partnerships  often  is 
conferred.  And  the  effect  of  such  alienation,  when 
properly  made,  is  to  determine  the  relation  of  partner- 
ship as  between  the  alienor  and  the  other  members  of 
the  firm,  and  to  substitute  a  similar  relation  with  the 
, alienee.  (^)  This  power  of  alienation  is  usually  confined 
to  joint  stock  companies,  and  regulated  by  the  provisions 
of  express  statutes.  (^) 

A  decree  for  dissolution  will  be  warranted  if  it  is  im- 
possible that  the  partnership  should  be  beneficially  con- 
tinued, e.  g.,  if  the  principles  on  which  the  scheme  is 
based  are  found  on  examination  to  be  erroneous  and  im- 
practicable;  (?;)  if  one  partner  excludes,  or  claims  to  ex- 
clude the  other  from  his  proper  share  of  control  in  the 
business,  or  if,  though  not  in  terms  excluding  him,  he  is 
so  conducting  himself  as  to  render  it  impossible  that  the 
r*94^T  business  should  be  conducted  *on  the  stipulated 
terms  ;(^)^  if  he  is  dealing  fraudulently  with  the 

(gr)  Young  V.  Keighley,  15  Ves.  557  ;  Duvergier  v.  Fellows,  5  Bing.  248  ; 
Blundell  v.  Windsor,  8  Sim.  601 ;  Harrison  v.  Heathorn,  6  Scott  N.  R.  735  ; 
12  Law.  J.  C.  P.  282 ;  PInkett  v.  Wright,  2  Hare  120,  130. 

{h)  Joint  Stock  Companies'  Acts,  7  Wm.  4  and  1  Vict.  c.  73  ;  7  &  8  Vict. 
c.  110  and  111 ;  Companies'  Clauses  Consolidation  Act,  8  &  9  Vict.  c.  16  ; 
•3  Steph.  Bl.  182 ;  Joint  Stock  Banks'  Acts,  7  Geo.  4,  c.  46 ;  and  1  and  2 
Vict.  c.  96 ;  5  &  6  Vict.  c.  85 ;  7  &  8  Vict.  c.  113 ;  3  Steph.  Bl.  340. 
-  (i)  Beaumont  v.  Meredith,  3  Ves.  &  B.  180 :  Clough  v.  Radcliffe,  1  De 
G.  &  S.  164. 

(fc)  Goodman  v.  Whitcomb,  1  J.  &  W.  569  ;  Hale  v.  Hale,  4  Beav.  369  ; 
Smith  V.  Jeyes,  Id.  503  ;  Waters  v.  Taylor,  15  Ves.  10;  2  Ves.  &  B.  299,  304. 

^  Where  a  partnership  is  formed  for  a  definite  term,  neither  partner  can, 


OF    PARTNERSHIP.  483 

business  or  assets  of  the  partnership  ;(Z)  or  if  he  is  inca- 
pacitated by  incurable  lunacy  from  performing  his  own 
part  in  the  partnership  business.  The  lunacy  of  a  part- 
ner does  not  per  se  amount  to  a  dissolution  ;  but  if  it  be 
not  a  mere  temporary  malady,  but  a  confirmed  state  of 
insanity,  without  a  fair  prospect  of  speedy  recovery,  it 
will  warrant  a  decree  for  the  purpose ;  and  the  partner- 
ship will  be  dissolved  as  from  the  date  of  the  decree,  (m)^ 

Assuming  a  dissolution  to  be  proved  or  decreed,  the 
next  topic  for  consideration  is  the  mode  of  winding  up 
the  concern. 

The  first  step  is,  that  the  partnership  debts  should  be 
ascertained,  and  the  assets  applied  in  their  discharge.^ 

(?)  Marshall  v.  Colman,  2  J.  &  W.  266.     . 

(m)  Waters  v.  Taylor,  2  Ves.  &  B.  299,  303 ;  Jones  v.  Noy,  2  M.  &  K. 
125 ;  Besch  ».  Frolich,  1  Ph.  172. 

during  the  term,  file  a  bill  for  a  dissolution  merely  on  the  ground  that  he 
is  dissatisfied,  or  that  the  partners  quarrel :  Henn  v.  Walsh,  2  Ed.  Ch.  129. 
But  only  little  more  is  needed,  and  dissolution  will  be  granted,  where  dis- 
sension prevents  all  hope  of  advantage :  Bishop  v.  Breckles,  1  Hofi".  Ch. 
534 ;  Watney  v.  Wells,  30  Beav.  56 ;  Stevens  v.  Yeatman,  19  Md.  480 ; 
Seighortner  v.  Weissenborn,  20  N.  J.  Eq,  172 ;  Meaher  v.  Cox,  37  Ala.  201. 
Especially  where  one  partner  assumes  the  exclusive  control  of  the  business, 
and  is  guilty  of  breaches  of  faith.  See  Kennedy  ».  Kennedy,  3  Dana  239 ; 
Howell  V.  Harvey,  5  Ark.  270 ;  Gowan  v.  Jeffries,  2  Ashmead  296 ; 
Maude  v.  Rodes,  4  Dana  144;  Story  v.  Moon,  8  Id.  226;  s.  c.  3  Id.  331 ; 
Garretson  v.  Weaver,  3  Ed.  Ch.  385.  Breaches  of  articles  of  partnership 
are  not  necessarily  the  fecundation  of  a  decree  of  dissolution :  Anderson 
V.  Anderson,  25  Beav.  190.  But  where  they  are  of  such  a  nature,  as  to 
show  that  a  partnership  cannot  be  carried  on  for  the  benefit  of  the  parties 
according  to  the  original  intention,  as  apparent  from  the  articles,  the 
partner  thus  affected  may  be  relieved  from  the  partnership,  although  there 
is  no  express  provision  that  the  partnership  should  determine  upon  the 
breaches  complained  of,  or  any  other  :  Hall  v.  Hall,  3  Macn.  &  G.  79.  See 
as  to  what  amounts  to  such  breach :  Smith  i'.  Mules,  9  Hare  556. 

^  Leaf ».  Coles,  1  De  G.,  M.  &  G.  171.  See  s.  c.  Id.  417,  as  a  proof  of 
the  caution  necessary  in  such  cases :  Rowlands  t?.  Evans,  30  Beav.  302. 

*  The  rule,  that  co-partnership  funds  are  to  be  applied  in  the  first  place 


484  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  parties  cannot  agree  on  the  intermediate  manage- 
ment, whilst  the  process  of  dissolution  is  going  on,  a  re- 


y 


(to  payment  of  the  debta  of  the  firm,  and  the  separate  funds  of  the  partners 
to  the  payment  of  their  individual  debts,  before  paying  joint  debts  out  of 
the  same,  is  very  generally  administered  in  this  country.  See  McCulloh  v. 
Dashiel,  1  Har.  &  Gill  96  ;  Lucas  v.  Atwood,  2  Stewart  378  ;  White  v. 
Dougherty,  1  Mart.  &  Yerg.  409 ;  Hubble  v.  Perrin,  3  Ham.  287  ;  Topliff 
V.  Vail,  Harring.  Ch.  340 ;  Tuno  v.  Trezevant,  2  Dessaus.  270  ;  Woddrop  v. 
Price,  3  Id.  203  ;  Deveau  v.  Fowler,  2  Paige  400 ;  Innes  v.  Lansing,  7  Id. 
583  ;  Payne  v.  Matthews,  6  Id.  19  ;  Rodiguez  v.  Heffernanj  5  Johns.  Ch. 
417  ;  Simmons  v.  Tongue,  3  Bland  356  :  Kirby  v.  Schoonmaker,  3  Barb. 
Ch,  46  ;  Brewster  v.  Hammet,  4  Conn.  540  ;  Witter  v.  Richards,  10  Id.  37  ; 
Wilder  v.  Keeler,  3  Paige  167  ;  Murray  v.  Murray,  5  Johns.  Ch.  60  ;  Gil- 
more  V.  N.  A.  Land  Co.,  1  Pet.  C.  C.  460 ;  Morgan  v.  Skidmore,  55  Barb. 
(N.Y.)263. 

The  general  rule  was  also  expressly  recognised  in  Murrill  v.  Neill,  8 
How.  U.  S.  414 ;  Muir  v.  Leitch,  7  Barb.  S.  C.  341  ;  Jarvis  v.  Brooks,  3 
Foster,  (Ji.  H.)  136  ;  Crockett  v.  Grain,  33  N.  H.  542  ;  Fall  River  Whaling 
Co.  V.  Borden,  10  Gush.  458  ;  Converse  v.  McKee,  14  Texas  20  ;  Talbot  v. 
Pierce,  14  B.  Monr.  195  ;  Inbusch  v.  Farwell,  1  Black  (U.  S.)  566  ;  Hill  v. 
Beach,  1  Beas.  31  ;  Linford  v.  Linford,  4  Dutch.  113  ;  Crooker  v.  Grooker, 
46  Maine  250 ;  52  Id.  267  ;  Treadwell  v.  Brown,  41  N.  H.  12 ;  Matlack  v. 
James,.  2  Beas.  126.  But  so  far  as  it  extends  to  give  an  actual  preference 
to  the  separate  creditors  over  the  separate  estate,  it  has  been  repudiated  in 
several  decisions,  and  has  met  the  disapprobation  of  some  of  the  ablest 
judges  in  this  country.  It  has  been  held,  in  these  cases,  contrary  to  the 
English  doctrine,  adopted  in  several  of  the  states  (see  above),  that  the  joint 
creditors  are  always  entitled  to  come  upon  the  separate  estate,  whether  by 
execution  at  law,  or  where  a  fund  is  created  for  creditors  by  death  or  in- 
solvency, and  that  equity  would  do  no  more  than  marshal  the  debts,  so  that 
the  j6int  creditors  should  be  compelled  to  proceed  against  the  partnership 
"^  assets  in  the  first  instance  :  Tucker  v.  Oxley,  5  Cranch  35  ;  Grosvenor  v. 
Austin,  6  Ohio  103  ;  Sperry's  Est.,  1  Ashmead  347 ;  Gleghorn  v.  Ins.  Bank 
of  Columbus,  9  Ga.  320  ;  Emanuel  v.  Bird,  19  Ala.  596  ;  Wardlaw  v.  Gray, 
Hill's  Ch.  644-653  ;  Gadsden  v.  Carson,  9  Rich.  Eq.  266  ;  Reed  v.  Shepard- 
son,  2  Verm.  120 ;  Allen  v.  Wells,  22  Pick.  450 ;  White  v.  Dougherty,  1 
Mart.  &  Yerg.  309  ;  Morrison  v.  Kurtz,  15  111.  193  ;  Pahlman  v.  Graves, 
26  Id.  407  ;  Black's  Appeal,  44  Penn.  St.  503  (modifying  the  rule  in  Bell 
V.  Newman,  5  S.  &  R.  78  ) ;  Houseal  &  Smith's  Appeal,  45  Penn.  St.  484  ; 
though  see  Weyer  v.  Thornburgh,  15  Ind.  126.  In  Camp  v.  Grant,  21  Conn. 
41,  the  court  went  even  further,  and  held,  that  as  partnership  debts  are,  in 
equity,  joint  and  several,  joint  creditors  might  claim  against  the  estate  of 


OF     PARTNERSHIP.     ^  485 

ceiver  may  be  appointed  to  conduct  it.  But  the  Court 
cannot  permanently  carry  on  the  business,  and  will  not, 

a  deceased  partner,  though  there  were  a  solvent  partner  living.  As  joint 
creditors,  however,  have  no  recourse  at  law  against  the  separate  assets,  in 
such  case,  so  long  as  there  is  a  surviving  partner,  it  would  seem  to  be  going 
very  far  to  interfere  with  the  legal  rights  of  the  separate  creditors,  by 
admitting  a  class  of  equitable  debts  to  come  in  pari  passu  with,  and,  so 
far,  in  derogation  of  them.  Equity,  in  the  administration  of  legal  assets, 
never  disregards  legal  preferences,  though  it  may,  in  some  cases,  by  mar- 
shalling, obviate  their  effect  upon  other  creditors,  as  to  the  equitable  assets, 
if  there  be  any.  As,  however,  all  assets  are  now  legal,  the  doctrine  of 
marshalling,  so  far,  cannot  arise.  What  special  equity  then,  have  the  joint 
creditors?  None,  it  is  now  universally  admitted,  but  such  as  they  can 
claim  through  that  of  the  partners,  which  is  clearly  to  have  the  partnership 
assets  applied  to  the  exoneration  of  the  separate  estate.  The  case  of  in- 
solvency or  death  of  a  surviving  partner,  stands  on  a  different  footing,  be- 
cause there,  the  joint  creditors  have  as  much  a  legal  right  to  recourse 
against  the  separate  estate,  as  the  separate  creditors ;  no  analogy  can, 
therefore,  be  drawn  between  them.  It  is  submitted,  indeed,  that  in  all 
cases,  the  true  principle  seems  to  be,  that  the  separate  creditors  ought  to 
be  as  much  entitled  to  avail  themselves  of  the  equities  between  the  partners 
as  the  joint  creditors  ;  and  that,  without  attributing  any  inherent  equity  to 
either  class,  the  assets  should  be  so  marshalled,  if  at  all,  as  to  throw  the 
burden  of  the  debts,  where,  as  between  the  partners,  it  ought  to  fall. 

The  preference  of  the  joint  creditors  over  the  partnership  assets,  is  un- 
doubted. See  in  Pennsylvania,  Doner  v.  Stauffer,  1  Penna.  R.  198  ;  Over- 
holfs  App.,  12  Penn.  St.  222  ;  Deal  v.  Bogue,  20  Id.  233  ;  Baker's  App., 
21  Id.  77  -,  Snodgrass's  App.,  13  Id.  474.  And,  indeed,  the  case  of  An- 
dress  v.  Miller,  15  Penn.  St.  316,  would  seem  to  show  a  return  to  the  en- 
tire English  doctrine. 

This  subject  will  be  found  discussed  very  fully  in  3  Kent's  Com.  65 ; 
and  in  the  note  to  Silk  u.  Prime,  2  Lead.  Gas.  Eq.  83,  3d  Am.  ed.      , 

Partnership  property  cannot  be  subjected  to  the  separate  debts  of  part- 
ners, until  all  partnership  debts  are  paid,  including  debts  due  from  the 
firm  to  the  partners  individually :  Christian  v.  Ellis,  1  Gratt.  396 ;  Buchan 
V.  Sumner,  2  Barb.  Ch.  165  ;  Conwell  v.  Sandidge,  8  Dana  279  ;  Pierce  v. 
Tiernan,  10  Gill  &  J.  252.  But  the  rule  does  not  apply  in  the  case  of  a 
silent  partner  ;  in  such  case  the  partnership  property  may  be  taken  for  the 
private  debts  of  the  ostensible  partner,  although  there  be  partnership  debts 
unpaid  :  Cammack  v.  Johnson,  1  Green's  Ch.  163.  The  partnership  cred- 
itors, as  such,  have  no  lien  on  the  joint  effects  for  their  debts ;  their  right 
is  wholly  dependent  on  the  lien  which  the  individual  partners  have  upon 
the  joint  funds  for  indemnity  against  joint  debts,  and  for  their  several  pro- 


486  ADAMS's    DOCTRINE    OF    EQUITY. 

therefore,  appoint  a  receiver,  except  with  a  view  to  get- 
ting in  the  effects  and  finally  winding  up  the  concern,  (w)^ 

(n)  Waters  v.  Taylor,  15  Ves.  10  ;  2  Ves.  &  B.  299;  Goodman  v.  Whit- 
combe,  IJ.  &  W.  589  ;  Const  v.  Harris.  T.  &  R.  496 :  Hare  v.  Hale,  4  Beav. 

portions  of  the  surplus,  including  moneys  advanced  by  either  of  them 
beyond  their  share  for  the  use  of  the  partnership.  See  Snodgrass's  App., 
13  Penn.  St.  474  ;  Potts  v.  Blackwell,  4  Jones  Eq.  58.  Hence  this  prefer- 
ence of  the  joint  stock  creditors  does  not  exist  when  the  partnership  is 
such  that  the  partners,  as  between  themselves,  can  enforce  no  such  right : 
Rice  V.  Bernard,  20  Verm.  479.  Or  it  may  be  terminated  at  any  time  by 
the  acts  of  the  parties,  as,  e.  g.,  by  the  sale  of  the  stock  in  trade  by  one 
partner  to  another  :  Parish  v.  Lewis,  1  Freem.  Ch.  299  ;  Robb  v.  Stevens, 
1  Clarke  Ch.  191  ;  Waterman  v.  Hunt,  2  Rhode  Island  298  ;  Doner  v. 
Stauffer,  1  Penn.  St.  198.  And  this,  '\i  hond  fide,  whether  the  partnership 
be  solvent  or  not:  Allen  v.  Centre  Valley  R.  R.,  21  Conn.  130;  or  even  if 
the  partner  to  whom  the  transfer  is  made  undertakes  to  pay  the  debts  of 
the  partnership  :  Baker's  App.,  21  Penn.  St.  775  ;  Robb  v.  Mudge,  14 
Grey  534;  Sigler  v.  The  Bank,  8  Ohio  (N.  S.)  511;  White  v.  Parrish,  20 
Tex.  688 ;  McNutt  v.  Strayhom.  39  Penn.  St.  269.  And  this  right  does 
not  exist  under  ?l  fieri  facias  levied  after  a  dissolution :  Cope's  Appeal,  39 
Penn.  St.  287.  But  see  Burtus  v.  Tisdall,  4  Barb.  S.  C.  571,  where  it  was 
held,  that  the  members  of  an  insolvent  partnership  cannot  by  agreement 
divide  the  assets  between  themselves,  so  as  to  apply  them  to  their  separate 
creditors.  See,  also,  Kirby  v.  Schoonmaker,  3  Barb.  Ch.  46 ;  Hoxie  v. 
Carr,  1  Sum.  173  ;  Story  v.  Moon,  3  Dana  334 ;  Black  v.  Bush,  7  B.  Monr. 
210. 

As  a  further  consequence  of  the  doctrine  just  stated,  it  must  affirma- 
tively appear,  that  the  debts  were  created  on  partnership  account ;  it  is 
not  sufficient  to  show  a  joint  liability  of  the  partners:  Snodgrass's  App.> 
13  Penn.  St.  474.  So,  too,  a  sale  upon  separate  execution  of  each  part- 
ner's interest,  to  the  same  purchaser,  passes  the  whole  interest  in  the 
partnership  property  discharged  of  the  joint  debts,  for  the  equities  of  the 
partners  have  then  ceased  :  Doner  v.  Stauffer,  1  Penna.  R.  198.  As  joint 
creditors  have  no  independent  equities  of  their  own,  they  have  no  right  to 
come  into  chancery,  to  question  or  prevent  any  disposition  by  the  part- 
ners of  the  firm  assets,  until,  as  in  ordinary  cases,  they  have  exhausted 
their  legal  remedies  :  Greenwood  v,  Brodhead,  8  Barb.  S.  C.  593. 

The  equity  of  the  partners  inter  se,  gives  them  no  greater  right  as  to  the 
separate  estate  of  each  other,  than  separate  creditors  :  Mann  v.  Higgins,  7 
Gill  265.  Nor  does  it  extend  after  dissolution  and  division  of  the  assets  : 
Holmes  v.  Hawes,  8  Ired.  Eq.  21. 

^  The  Court,  generally,  will  not  appoint  a  receiver  on  motion,  unless  it 
a  tisfactorily  appears  that  the  plaintiff  is  entitled  to  have  the  partnership 


OF    PARTNERSHIP.  487 

If,  after  applying  the  assets,  there  are  still  outstanding 
liabilities,  the  partners  must  contribute  in  proportion  to 
their  shares  ;  if,  on  the  other  hand,  a  surplus  remains,  it 
will  be  distributed  among  them  in  like  proportion. 

369;  Smith  v.  Jeyes,  4  Id.  503  ;  infra,  Receiver."  [See  Wolbert  v.  Harris, 
3  Halst.  Ch.  005.] 

dissolved,  and  its  affairs  closed  up  :  Garretson  v.  Weaver,  3  Ed.  Ch.  385  ; 
Law  V.  Ford,  2  Paige  310;  Martin  v.  Van  Schaick,  4  Id.  479;  Smith  v. 
Lowe,  1  Ed.  Ch.  33 ;  Walker  v.  House,  4  Md.  Ch.  40  :  Renton  v.  Chap- 
lain, 1  Stock.  62 ;  Cox  r.  Peters,  2  Beas.  39 ;  see,  also,  Sloan  v.  Moore,  37 
Penn.  St.  222 ;  a  case  in  which  a  receiver  was  appointed.  Nor  without 
notice  to  those  interested  ;  but  there  are  exceptions,  as  where  irreparable 
injury  would  arise  from  delay  :  Williamson  v.  Wilson,  1  Bland  Ch.  418  ; 
Gowan  v.  Jeffries,  2  Ashm.  296;  Holden  v.  McMakin,  1  Pars.  Sel.  Eq. 
Cas.  284;  Hall  p.  Hall,  3  Macn.  &  G.  79.  So  where  irreparable  injury 
might  ensue  from  the  defendant's  acts,  a  receiver  may  be  appointed  even  on 
a  bill  not  praying  a  dissolution,  but  restraint  from  breaches  of  partnership 
articles:  Hall  v  Hall,  3  Macn.  &  G.  79.  And  the  Court  will  not  refuse  a 
receiver,  in  a  proper  case,  because  questions  are  raised  between  the  part- 
ners on  the  motion,  as  where  the  defendant  in  possession  of  the  assets  alleges 
that  they  are  not  sufficient  to  discharge  the  debts  due  him  ;  the  only  ob- 
ject of  the  appointment  of  the  receiver  being  to  protect  the  assets  till  the 
determination  of  the  respective  rights  :  Blakeny  v.  Dufau,  15  Beav.  40.  A 
receiver  is  always  granted  in  a  clear  case  of  exclusion  :  Blakeney  v.  Dufau, 
ut  sup. ;  Wolbert  v.  Harris,  3  Halst.  Ch.  605  ;  especially  after  dissolution, 
or  where  dissolution  is  intended:  Drury  v.  Roberts,  2  Md.  Ch.  157; 
Speights  V.  Peters,  9  Gill  472.  So  where,  after  dissolution,  one  partner 
carries  on  business  with  the  partnership  effects  on  his  own  account: 
Speights  V.  Peters,  ut  sup.;  Walker  v.  House,  4  Md.  Ch.  40.  But  where, 
on  dissolution,  it  is  agreed  that  one  or  more  of  the  number  shall  have 
charge  of  the  affairs  and  wind  up  the  partnership,  the  Court  will  not 
lightly  interfere,  as  on  mere  apprehension  of  loss.  There  must  be  some 
palpable  breach  of  duty,  or  an  act  amounting  to  fraud,  or  real  endanger- 
ment  of  property,  to  justify  the  appointment  of  a  receiver:  Walker  v. 
Trott,  4  Edw.  Ch.  38.  A  receiver  will  not  be  appointed  on  the  application 
of  the  representatives  of  a  deceased  against  a  surviving  partner,  except  in 
a  case  of  mismanagement  or  improper  conduct ;  but  where  all  the  partners 
are  dead,  and  there  is  no  provision  for  winding  up  the  concern,  a  receiver 
is  of  course,  as  between  the  representatives :  Walker  v.  House,  4  Md.  Ch. 
40.  Where  one  partner  is  bankrupt,  the  continuing  partner  is  entitled  to 
a  receiver :  Freeland  v.  Stansfield,  16  Jur.  792 ;  Randall  r.  Morrell,  2 
Green  (N.  J.)  343. 


488  ADAMS'S    DOCTRINE    OF    EQUITY. 

The  proportions  in  which  the  partners  are  respectively 
entitled  or  liable  are  determined  by  the  original  terms  of 
their  contract ;  or  in  the  absence  of  any  express  declara- 
tion on  the  point,  -by  a  reasonable  presumption  from  the 
circumstances  of  the  case.(())^  If,  subsequently  to  the 
P94.4-1  *commencement  of  the  business,  advances  had 
been  made  to  the  firm,  or  moneys  drawn  out  by 
any  partner,  beyond  his  due  proportion,  their  shares  in 
the  distribution  will  be  modified  accordingly.  If  such 
sums  have  been  advanced  or  received  by  way  of  increase 
or  diminution  of  capital,  they  will  introduce  a  new  ele- 
ment in  the  division  of  profits ;  if  by  way  of  loan  to  or 
from  the  partnership,  they  will  not  affect  the  division  of 
profits,  but  will  be  dealt  with  on  the  footing  of  loans  in 
the  final  settlement  of  the  account.  The  distinction, 
however,  is  confined  to  the  account  as  between  the  part- 
ners themselves,  and  does  not  affect  the  creditors.  The 
creditors  are  entitled  to  assume  that  a  partner,  dealing 
with  the  firm,  has  dealt  with  it  in  his  character  as  a  mem- 
ber, so  that  his  advance  shall  be  treated  as  an  increase  of 
the  partnership  fund,  and  not  as  an  independent  debt.^ 
The  consequence  of  this  doctrine  is,  that  no  partner  can, 
either  by  making  advances  to  the  firm  or  by  any  other 
course  of  dealing,  entitle  himself  to  a  lien  on  the  partner- 

(o)  Thompson  v.  ■Williamson,  7  Bli.  432. 

^  In  the  absence  of  any  stipulation  as  to  the  division  of  the  profits  of  a 
partnership,  the  law  divides  them  equally :  Jones  v.  Jones,  1  Ired.  Eq. 
332 ;  see  also  Honore  v.  Colmeshil,  1  J.  J.  Marsh.  506  ;  Towner  v.  Lane, 
9  Leigh  262. 

^  See  Logan  v.  Bond,  13  Ga,  196.  A  co-partner  having  taken  money  out 
of  the  hands  of  the  partnership  and  carried  it  into  a  new  concern  which 
became  bankrupt,  it  was  held  that  the  fund  could  not  be  followed  specifi- 
cally, so  as  to  give  the  former  co-partnership  a  priority  over  the  other 
creditors  of  the  bankrupt  house :  McCauly  v.  McFarlane,  2  Dessaus.  239. 


OF    PARTNERSHIP.  489 

ship  assets,  or  on  the  shares  of  his  copartners  therein,  ex- 
cept in  subordination  to  the  partnership  creditors.  And 
e  converso,  money  drawn  out  by  a  partner  without  fraud, 
for  his  separate  use,  will  not  be  considered  a  mere  ad- 
vance by  the  firm,  recoverable  as  such  in  the  character  of 
a  debt,  but  as  having  been  entirely  separated  from  the 
joint  stock,  and  become  the  private  property  of  the  indi- 
vidual. If  it  has  been  fraudulently  abstracted,  the  case 
is  different,  and  the  other  partners,  or  in  the  event  of 
bankruptcy,  the  joint  creditors  may  reclaim  it  for  the  part- 
nership. (/>) 

In  order  to  effectuate  the  realization  of  assets,  the  pay- 
ment of  debts,  and  the  distribution  of  surplus,  the  Court 
has  an  authority  over  partnership  estate  which  does  not 
exist  in  other  cases  of  common  ownership,  that  of  direct- 
ing its  sale  and  conversion  into  money .^  And  this  juris- 
diction may  be  exercised  either  by  the  same  decree  which 
directs  a  dissolution,  or,  if  dissolution  has  already  taken 
place,  by  *an  interlocutory  order. (5-)  The  effect  r*o4.c-i 
of  the  equity  to  insist  on  such  a  sale,  where  real 
estate  is  held  by  the  partnership,  and  a  dissolution  has 
been  caused  b}*"  death,  is  to  raise  a  question  of  equitable 
conversion  between  the  real  and  personal  representatives 
of  the  deceased  partner.     The  legal  ownership  will  of 

(j?)  Richardson  v.  Bank  of  England,  4  M.  &  C.  165 ;  Pinkett  v.  Wright, 
2  Hare  129  :  Ex  parte  Rufflft,  6  Ves.  119 :  Ex  parte  Yonge,  3  Ves.  &  B.  31. 

{q)  Crawshay  v.  Maule,  1  Sw.  495.  523 ;  Featherstonhaugh  v.  Fenwick, 
17  Ves.  298  ;  Cook  v.  CoUingridge,  Jac.  607  ;  Simmons  v.  Leonard,  3  Hare 
581. 

^  In  winding  up  the  concerns  of  a  partnership,  after  a  dissolution,  one 
partner  cannot  take  the  partnership  stock  at  a  valuation,  but  its  value  must 
be  ascertained  by  the  conversion  of  it  into  money :  Sigourney  v.  Munn,  7 
Conn.  11;  Dickinson  r.  Dickinson,  29  Id.  600.  See  also,  to  this  point, 
Evans  v.  Evans,  9  Paige  178  ;  Dougherty  v.  Van  Nostrand,  1  Hoff.  Ch.  68  ; 
Conwell  V.  Sandidge,  8  Dana  278  ;  Mayer  v.  Clark,  40  Ala.  259. 


490  ADAMS's    DOCTRINE     OF    EQUITY. 

course  devolve  according  to  the  limitations  in  the  convey- 
ance; but  the  equitable  interest  of  the  deceased  partner 
in  the  surplus,  so  far  as  it  is  referable  to  the  real  portion 
of  the  assets,  wilt  devolve  on  his  heir  or  his  executor,  ac- 
cording as  the  equity  for  sale  is  confined  to  satisfaction  of 
the  liabilities,  or  extends  to  distribution  among  the  part- 
ners. The  doctrines  on  this  point  appear  to  be  as  follows : 
first,  that  if  there  be  any  express  contract  or  declaration 
by  the  partners;  the  question  will  be  determined  by  it;  (r) 
secondly,  that  if  real  estate  be  purchased  with  partnership 
funds  for  partnership  purposes,  the  conversion  into  per- 
sonal estate  is  absolute; (5)  thirdly,  that  if  it  be  not  pur- 
chased with  partnership  funds,  but  being  the  property  of 
one  or  more  partners,  be  devoted,  either  partially  or  en- 
tirely, to  the  partnership  business,  the  extent  of  conver- 
sion depends  on  the  intention.  And  it  must  be  determined 
from  the  circumstances  of  the  particular  case  whether  that 
intention  was  to  convert  it  in  toto,  both  as  to  the  liability 
for  debts,  and  also  as  to  the  destination  of  the  surplus,  or 
to  confine  it  to  subservience  to  the  business  during  its 
continuance,  and  to  a  liability  for  the  debts  after  dissolu- 
tion ;(^)  fourthly,  that  if  though  purchased  out  of  the 
partnership  fund,  it  has  not  been  purchased  for  partner- 
ship purposes,  but  has  been  intended  as  an  investment  of 
surplus  profits,  it  is  in  fact  taken  out  of  the  business, 
*and  belongs  to  the  individual  partners  as  their 
'-  ^  separate  property,  according  to  its  unconverted 
character ;  (w)   and  lastly,  that  the   conversion,  when  it 

(r)  Ripley  v.  Waterworth,  7  Ves.  425. 

(s)  Phillips  V.  Phillips,  1  M.  &  K.  649 ;  Broom  v.  Broom,  3  M.  &  K. 
443  ;  Bligh  V.  Brent,  2  Y.  &  C.  268  ;  Houghton  v.  Houghton,  11  Sim.  491 ; 
[Darby  v.  Darby,  25  L.  J.  Ch.  371.] 

[t)  Balmain  v.  Shore,  9  Ves.  500  ;  Randall  v.  Randall,  7  Sim.  271 ;  Cook- 
son  V.  Cookson,  8  Sim.  529. 

[u)  Bell  V.  Phyn,  7  Ves.  453. 


OF    PARTNERSHIP.  491 

operates  at  all,  operates  in  favor  of  the  personal  represen- 
tfitive  alone,  and  does  not  create  a  liability  to  probate  duty 
in  favor  of  the  Crown,  which  is  a  stranger  to  the  convert- 
ing equity,  (t;)^ 

(p)  Custanee  v.  Bradshaw,  4  Hare  315. 


^  The  current  of  American  decisions  in  respect  to  real  estate  purchased 
with  partnership  funds,  or  for  the  use  of  the  firm,  seems  to  establish  :  1st. 
That  such  real  estate  is  in  equity  chargeable  with  the  debts  of  the  co- 
partnership, and  with  any  balance  due  from  one  partner  to  another,  upon 
the  winding  up  of  the  affairs  of  the  firm.  2d.  That  as  between  the  per- 
sonal representatives  and  the  heirs  at  law  of  a  deceased  partner,  his  share 
of  the  surplus  of  the  real  estate  which  remains  after  paying  the  debts  of 
the  partnership,  and  adjusting  the  claims  of  the  different  members  of  the 
firm,  as  between  themselves,  is  to  be  considered  and  treated  as  real  estate : 
Buchan  f.  Sumner,  2  Barb.  Ch.  165;  Sigourney  p.  Munn,  7  Conn.  11; 
Winslow  V.  Chiffelle,  1  Harp.  Eq.  25  :  Thayer  v.  Lane,  Walkers  Eq.  200  ; 
Dyer  v.  Clark,  5  Mete.  562;  Greene  v.  Greene,  1  Ham.  535;  Marvin  ». 
Trumbull,  Wright  386  ;  Burnside  t?.  Merrick,  4  Mete.  541 ;  Summer  v. 
Hampson,  8  Ohio  364 ;  Rice  v.  Barnard,  20  Verm.  479  ;  Smith  v.  Tarlton, 
2  Barb.  Ch.  3.36  :  Baird  v.  Baird,  1  Dev.  &  Batt.  Eq.  524  ;  Hoxie  ».  Carr, 
1  Sumn.  173:  Overholfs  Appeal,  12  Penn.  St.  222:  Smith  v.  Jones,  12 
Maine  337  ;  Baldwin  v.  Johnson,  Saxton  441 ;  Richardson  v.  Wyatt,  2  Des- 
gaus.  471 ;  Woolridge  v.  W^ilkins,  3  How.  (Miss.)  360 ;  Peck  v.  Fisher,  7  Cush. 
390 ;  Boyce  v.  Coster,  4  Strob.  Eq.  30  :  Buckley  v.  Buckley,  11  Barb.  S.  C.  44 ; 
Deming  r.  Colt.  3  Sand.  S.  C.  2S4 ;  Talbot  v.  Pierce,  14  B  Monr.  195 ;  see 
Lang  v.  Waring.  17  Ala.  145  :  Andrew's  Heir  v.  Brown's  Adm.,  21  Ala.  437 ; 
Wilcox  V.  Wilcox,  13  Allen  (Mass.)  2.52 ;  Bryant ».  Hunter,  6  Bush  (Ky.)  75  ; 
Cornwall  v.  Cornwall,  Id.  369  :  Nat.  Bank  of  Metropolis  v.  Sprague,  20  N.  J. 
Eq.  13  :  Uhler  v.  Simple,  20  N.  J.  Eq.  288.  But  a  purchaser  without  notice, 
of  partnership  real  estate,  takes  discharged  of  the  debts  :  Buck  v.  Winn,  11 
B.  Monr.  320 ;  Boyee  v.  Co'eter,  4  Strob.  Eq.  30.  In  Peck  r.  Fisher,  7  Cush.  390, 
it  was  held  that  a  levy  and  sale  of  such  real  estate  on  a  separate  execution 
passed  a  good  title  to  the  purchaser,  yet  subject  in  equity  to  the  debts. 
Ch.  J.  Gibson,  however,  in  Kramer  p.  Arthurs,  7  Penn.  St.  172,  was  of 
opinion  that  as  a  separate  creditor  could  sell  only  the  contingent  interest 
of  a  partner  in  the  profits,  that  being  personalty,  would  not  be  ly)und  by 
a  judgment.  Sed  qu.,  for  the  judgment  would  bind  the  legal  estate  ;  and 
unless  partnership  real  estate  is  to  be  treated  as  converted  out  and  out, 
which  is  against  the  current  of  authorities  in  this  country,  the  conversion 
for  the  special  purposes  of  satisfying  the  equities  of  the  partnership,  would 


492  ADAMS's    DOCTRINE     OF    EQUITY. 

If  after  a  partnership  has  been  dissolved  by  death  or 
bankruptcy,  the  assets  are  used  by  the  surviving  or  sol- 
vent partner  for  the  purposes  of  profit,  he  is  in  the  same 
position  as  any  other  fiduciary  holder  of  property  using 
it  for  his  own  benefit,  and  is  liable  at  the  option  of  the 
executors  or  assignees  to  account  for  the  profit  which  he 
has  made.^     It  does  not,  however,  follow,  that  in  taking 

eave  it,  ultra  those  purposes,  unconverted.  Though  on  the  death  of  a 
partner  his  moiety  of  the  legal  estate  in  partnership  land  descends  to  his 
heir,  yet  a  sale  of  the  whole  by  the  survivor,  for  the  purpose  of  paying  part- 
nership deaths,  will  pass  the  equitable  estate  to  the  purchaser,  and  he  may 
compel  a  conveyance  by  the  heir :  Andrews  v.  Brown,  21  Ala.  437.  A 
lease  of  partnership  land  is  to  be  considered  a  partnership  transaction : 
Moderwell  v.  Mullison,  21  Penn.  St.  259.  And  if  the  title  to  the  real  es- 
tate is  in  one  partner  only,  and  he  dies,  his  heirs  will  be  considered  as 
trustees  for  the  survivor  :  Pugh  v.  Currie,  5  Ala.  446.  See  also  Smith  v. 
Ramsey,  1  Gilm.  373.  And  a  sale  thereof,  in  a  suit  to  settle  the  partner- 
ship aifairs,  binds  the  heirs  of  a  deceased  partner,  though  not  parties  to  the 
suit:  Waugh  v.  Mitchell,  1  Dev.  &  Batt.  510.  See,  on  the  other  hand, 
Yeatman  v.  Wood,  6  Yerg.  20 ;  Deloney  v.  Ilutcheson,  2  Rand.  183  ;  Smith 
V.  Jackson,  2  Ed.  Ch.  28  ;  Hart  v.  Hawkins,  3  Bibb  502.  When  partners 
intend  to  bring  real  estate  into  the  partnership  stock,  the  intention  ought 
to  be  manifest  by  deed  or  writing,  placed  on  record,  that  purchasers  and 
creditors  may  not  be  deceived :  Hale  v.  Henrie,  2  Watts  143 ;  Forde  v. 
HerrOn,  4  Munf.  316;  Ridgway's  App.,  15  Penn.  St.4-77.  See  also,  AVare 
V.  Owens,  42  Ala.  212 ;  Pecot  v.  Armelin,  21  La.  Ann.  667. 

^  If  a  partnership  business,  after  its  termination  by  death  or  otherwise, 
is  continued  by  any  portion  of  the  associates  with  the  capital  or  appliances 
of  the  firm,  all  profits  derived  from  such  continued  business  are  part  of  the 
joint  estate,  and  are  to  be  accounted  for  to  the  other  .partners  or  their  re- 
presentatives :  Waring  v.  Cram,  1  Pars.  Sel.  Eq.  Cas.  522.  And  see 
Washburn  v.  Goodman,  17  Pick.  519.  A  surviving  partner  is  treated  in 
the  light  of  a  trustee,  and  is  bound  to  furnish  a  full  and  accurate  state- 
ment of  all  the  transactions  of  the  partnership,  and  to  dispose  of  the  pro- 
perty at  the  best  advantage.  He  cannot  take  the  property  at  an  estimated 
value,  without  the  consent  of  the  representatives  of  the  deceased  partner, 
and  if  he  does,  he  will  be  accountable  to  them  for  the  profits  made  there- 
by :  Ogden  v.  Astor,  4  Sandf.  S.  C.  311.  A  partnership  may  be  continued 
in  equity  after  the  death  of  one  of  the  partners,  for  the  benefit  of  his 
infant  children,  with  the  consent  of  the  surviving  partners :  Powell  v. 


OF    PARTNERSHIP.  493 

the  subsequent  account,  the  division  of  the  profits  is  to  be 
the  same  as  if  the  partner  had  not  died  or  become  bank- 
rupt, or  is  to  be  determined  by  any  other  specific  rule ; 
but  the  decision  Avill  be  guided  by  the  circumstances  of 
the  business,  to  be  ascertained  by  inquiry  under  the  direc- 
tion of  the  Court,  such,  for  instance,  as  the  source  from 
which  the  profits  are  derived,  whether  originating  in  mere 
profitable  traffic  or  in  the  personal  skill  and  activity  of 
individual  partners,  (w)  There  is  a  doubt  as  to  the  liability 
of  a  surviving  partner  with  respect  to  the  mere  good-will 
of  a  commercial  partnership,  where  such  good-will  is  un- 
connected with  any  particular  premises,  and  consists  only 
in  the  probability  that  the  customers  of  the  old  firm  will 
continue  their  connection  with  any  new  firm  professedly 
carried  on  in  continuance  of  the  old.  It  has  been  con- 
sidered on  the  one  hand  that  such  good-will  belongs  ex- 
clusively to  the  survivor,  and  on  the  other,  that  it  must 

(w)  Cra-wshay  v.  Collins,  15  Yes.  218;  Brown  v.  De  Tastet,  Jac.  284; 
Cook  V.  Collingride,  Jac.  607  ;  Wedderburn  v.  Wedderburn,  2  K.  772 ;  4 
M.  &  C.  41 ;  Willet  V.  Blanford,  1  Hare  253. 

North,  3  Indiana  (Porter]  392.  An  express  agreement  in  the  articles,  that 
the  widow  of  one  of  the  partners  should,  if  she  elected  so  to  do,  carry  on 
the  business  with  the  survivor,  and  be  entitled  to  her  husband's  share  of 
the  profits  and  capital,  creates  a  trust  which  can  be  enforced  in  equity : 
Page  V.  Cox,  10  Hare  163. 

It  may  be  remarked  here  that  in  a  recent  case  in  England,  Buckley  v. 
Barber,  6  Exch.  164,  it  h«i^  been  held,  that  partnership  chattels,  on  the 
death  of  one,  do  not  survive  to  the  remaining  partners  ;  and  that  they  have 
no  power  to  dispose  of  them  by  sale  or  mortgage  in  satisfaction  of  debts. 
But  this  is  not  in  accordance  with  the  doctrines  on  the  subject  as  understood 
in  this  country  :  see  Story,  Partnership,  ^  344;  3  Kent.  37  ;  Am.  note  to 
Buckley  v.  Barber,  ut  supr. :  and  would  be  likely  to  produce  no  little  diflB- 
culty  in  the  winding  up  of  partnerships  in  such  cases.  It  would  rather 
seem,  that  as  the  exception  of  jus  accrescendi  inter  mercatores  locum  non 
habet,  was  introduced  for  the  benefit  of  trade,  its  operation  should  be  con- 
trolled for  the  same  reason. 


494  ADAMS's     DOCTRINE     OF     EQUITY. 

be  treated  as  a  portion  of  the  partnership  assets,  so  as  to 
entitle  the  executors  of  a  deceased  partner  to  a  share  of 
profits.  {:v)  ^ 

r*94.71  *^^  addition  to  the  general  jurisdiction  over 
partnership,  there  is  also  a  jurisdiction  over  mines 
and  collieries  held  by  several  persons  as  co-owners,  on  the 
ground  of  what  may  be  termed  a  quasi  partnership.  It 
often  happens  that  such  co-owners  have,  by  an  agreement 
expressly  made  or  deduced  by  implication  from  their  acts, 
formed  themselves  into  a  trading  partnership,  holding  the 
mines  as  a  portion  of  its  assets.  When  this  is  the  case 
the  ordinary  jurisdiction  over  partnership  will  be  inciden- 
tal to  their  agreement.  But  it  may  also  happen  that  no 
partnership  has  been  formed,  and  that  the  parties  have 
merely  concurred  in  working  their  mines  as  tenants  in 
common.  In  this  case  the  jurisdiction  over  partnerships 
will  not  attach;  and  if  it  were  an  ordinary  instance  of 

{x)  Crawshay  V.  Collins,  15  Ves.  218,  227;  Cruttwell  v.  Lye,  17  Id.  336; 
Farr  v.  Pearce,  3  Mad.  74  ;  Lewis  v.  Langdon,  7  Sim.  421  ;  Willet  v.  Blant- 
ford,  1  Hare  253,  271. 

*  The  good-will  of  a  business  built  up  by  a  copartnership  is  an  important 
and  valuable  interest,  which  the  law  recognises  and  will  protect:  Williams 
V.  Wilson,  4  Sandf.  Ch.  379.  And  upon  a  dissolution  it  must  be  sold ;  it 
does  not  survive :  Dougherty  v.  Van  Nostrand,  1  Iloff.  Ch.  G8.  The  good- 
will (consisting  of  the  subscription  list,  &c.)  of  a  newspaper  is  partner- 
ship property,  and  when  one  of  the  partners  dies,  it  does  not  survive  to 
the  surviving  partner,  but  is  to  be  sold,  with  the  presses,  types  and  me- 
chanical appliances  of  the  establishment.  Case  of  the  Saturday  Courier, 
Holden's  Admr.  v.  McMakin,  1  Parsons'  Sel.  Eq.  Cas.  270. 

The  good-will  is  distinct  from  the  profits  of  a  business ;  although  in  de- 
termining its  value,  the  profits  are  necessarily  taken  into  account,  and  it 
is  usually  estimated  at  so  many  years'  purchase  upon  the  amount  of  these 
profits :  Austen  v.  Boys,  27  L.  J.  Ch.  714.  In  this  case  it  was  considered 
that  there  could  be  no  such  thing  as  the  good-will  of  a  business  such  as 
that  of  a  solicitor,  which  is  dependent  principally  on  a  confidence  in  the 
professional  skill  and  integrity  of  a  particular  person. 


OF     PARTNERSHIP.  495 

tenancy  in  common,  there  would  be  no  jurisdiction  to  in- 
terfere with  any  one  of  the  co-owners  with  respect  to  his 
own  share,  whatever  ground  there  might  be  to  restrain 
him  from  excluding  the  rest.  The  rule,  however,  is  dif- 
ferent with  respect  to  mines  ;^  for  the  working  of  them  has 
always  been  considered  as  a  species  of  trade ;  and  if  each 
owner  were  to  deal  separately  with  his  separate  share, 
and  to  have  a  separate  set  of  miners  going  down  the  shaft, 
it  would  be  practically  impossible  to  work  the  mine  at  all. 

^  In  Roberts  v.  Eberhart,  1  Kay  148,  however,  the  distinction  taken  in 
the  text  between  mines  and  collierieSj  seems  to  be  somewhat  aflFected.  It 
was  said  there  by  th«  A'^ice-Chancellor,  that  there  were  two  modes  of  view- 
ing a  mining  concern-  It  might  be  one  really  held  as  property  by  parties 
who  neve^  acquired  it  for  purposes  of  trade,  as  where  an  estate  containing 
mines,  has  descended  from  the  owner  to  two  co-heirs,  and  such  joint  owners 
agree  to  work  the  mines  together  with  their  joint  property,  and  buy  steam 
engines,  and  pay  workmen  during  that  working.  That  would  be  a  part- 
nership in  the  working,  though  not  in  the  land ;  and  either  of  the  joint 
owners  might  at  any  time  change  his  mind,  and  put  an  end  to  the  joint 
working.  One  might  then  continue  to  work,  but  could  not  compel  the 
other  to  go  on  ;  and  he  who  continued  to  work  might  have  to  render  an 
account.  The  other  case  would  be  where  the  circumstances  afforded  evi- 
dence that  the  whole  property  was  intended  to  be  used  as  a  partnership 
concern;  and,  therefore,  where  any  disagreement  arose,  any  of  the  part- 
ners might  come  into  the  Court  to  determine  the  partnership  and  have  the 
property  divided.  In  either  case  it  would  be  proper  to  ask  for  a  dissolu- 
tion and  winding  up  of  the  concern,  and  for  receiver  if  the  partners  could 
not  agree. 

In  this  case  two  tenants  in  common  of  a  mine  had  been  working  it 
jointly,  when  a  disagreement  arose,  and  then  one  continued  to  work  it, 
but  the  other  refused  to  cooperate  with  him  in  doing  so,  or  in  providing 
some  necessary  expenses,  though  he  did  not  interfere  in  the  management. 
The  managing  partner  filed  a  bill  for  an  account  and  receiver,  but  did  not 
pray  a  dissolution.  The  Court  held  that  it  could  not,  at  the  instance  of 
the  managing  partner,  and  where  there  had  been  no  interference  by  the 
other,  and  no  dissolution  was  prayed,  appoint  a  receiver.  Where  persons 
are  engaged  in  working  a  mining  claim,  and  share  the  profit  and  loss, 
they  are  partners,  although  there  is  no  express  stipulation  for  such  com- 
munion of  loss  and  profit :  Duryea  v.  Burt,  28  Cal.  569.  See  also,  as  to 
this  subject,  Grubb's  Appeal,  66  Penn.  St.  117. 


496  ADAMS'S    DOCTRINE    OF    EQUITY. 

For  this  reason  it  is  held  upon  general  principles,  without 
reference  to  the  particular  circumstances  of  any  case,  that 
where  tenants  in  common  of  a  mine  or  colliery  cannot 
agree  in  its  management,  the  Court  will  appoint  a  receiver 
over  the  whole,  notwithstanding  some  of  the  co-owners 
may  dissent.  In  accordance  with  the  same  view,  the 
Court  grants  an  injunction  against  trespass,  and  allows 
suits  for  the  mesne  profits  of  a  mine  or  colliery,  if  it 
appears  from  the  peculiar  character  of  the  property, 
coupled  with  the  general  circumstances  of  the  case,  that 
the  remedy  would  be  impracticable  at  law.(^) 

{y)  Crawshay  v.  Maule,  1  Sw.  495,  518,  523 ;  Jeffreys  v.  Smith,  IJ.  & 
W.  298  ;  Fereday  v.  Wightwick,  1  K.  &  M.  45 ;  Bentley  v.  Bates,  4  Y.  &  C. 
182 ;  Vice  V.  Thomas,  Id.  538. 


OF    TESTAMENTARY    ASSETS.  497 


*CHAPTER    IV.  [*248] 

OF   ADMINISTRATION   OF   TESTAMENTARY   ASSETS. 

The  equity  for  administering  the  assets  of  a  testator 
or  intestate  does  not  authorize  the  Court  of  Chancery  to 
try  the  validity  of  a  will.  The  jurisdiction  for  that  pur- 
pose in  regard  to  wills  of  personal  estate  belongs  to  the 
Ecclesiastical  Courts,  and  in  regard  to  wills  of  real  estate 
to  the  Courts  of  common  law.* 

^  In  cases  of  fraud,  equity  has  a  concurrent  jurisdiction  with  a  Court  of 
law,  except  in  the  case  of  a  will  charged  to  have  been  obtained  through 
fraud.  If  it  be  a  devise  of  real  estate,  it  is  referred  to  a  Court  of  law  to 
decide,  upon  an  issue  of  devisavit  vel  non;  if  a  testament  of  personal  pro- 
perty, to  the  Court  of  Probate.  Yet,  even  in  this  instance,  the  bill  may 
be  retained  to  abide  the  decision  of  the  proper  Court,  and  relief  be  decreed 
according  to  the  event:  Gaines  et  ux.  v.  Chew  et  al.,  2  How.  U.  S.  619, 
645 ;  Colton  v.  Ross,  2  Paige  396  ;  Hamberlin  v.  Terry,  7  How.  (Miss.)  143 ; 
Cowden  v.  Cowden,  2  Id.  806  ;  Ewell  v.  Tidwell,  20  Ark.  136  ;  Blue  v.  Pat- 
terson, 1  Dev.  <fe  Batt.  Ch.  457 ;  Lyne  v.  Guardian,  1  Miss.  410 ;  Van  Alst 
V.  Hunter,  5  Johns.  Ch.  148  ;  Hunt  v.  Hamilton,  9  Dana  90 ;  Muir  v.  Trus- 
tees, 3  Barb.  Ch.  477;  McDowall  ».  Peyton,  2  Dessaus.  313;  Burrow  v. 
Ragland,  6  Humph.  481 ;  punter's  Will,  6  Ohio  499  ;  Gould  ».  Gould,  3 
Story  516 ;  Watson  v.  Bofiiwell,  11  Ala.  653 ;  Adams  v.  Adams,  22  Verm. 
50.  It  has  been  generally  held,  however,  that  equity  has  jurisdiction  in 
the  case  of  a  lost,  suppressed  or  spoliated  will,  to  establish  the  same,  and 
to  decree  payment  of  a  legacy  by  the  executor,  or  that  the  heir  shall  stand 
as  trustee  for  the  disappointed  devisee:  Allison  v.  Allison,  7  Dana  94; 
Bailey  v.  Stiles,  1  Green  Ch.  220;  Buchanan  v.  Matlock,  8  Humph.  390; 
Meads  v.  Langdon's  Heirs,  cited  22  Verm.  59  ;  see  Story  Eq.,  §254 ;  Hill 
on  Trustees  151  ;  Legare  v.  Ashe,  1  Bay  (S.  C.)  464.  Contra,  Morningstar 
V.  Selby,  15  Ohio  345,  and  Slade  v.  Street,  27  Ga.  17,  where  the  jurisdic- 
tion was  held  to  be  exclusively  in  the  Probate  Courts.  In  Gaines  v.  Chew, 
32 


498  ADAMS's    DOCTRINE    OF    EQUITY. 

.  The  validity  of  a  will  of  personal  estate  is  triable  only 
by  the  Ecclesiastical  Courts ;  and  a  probate  copy  under 
their  seal,  unless  lost  or  destroyed,  is  the  only  admissible 
evidence  of  such  validity,  and  of  the  consequent  title  of 
the  executor.  In  like  manner,  if  there  be  no  executor, 
an  administrator  can  only  be  appointed  by  the  Ecclesias- 
tical Court.  And  even  fraud,  if  practised  on  a  testator 
in  obtaining  a  will,  is  insufficient  to  create  a  jurisdiction 
in  equity.  If,  indeed,  the  fraud  be  not  practised  on  the 
testator  himself,  but  on  an  intended  legatee;  e.  g.,  if  the 
drawer  of  a  will  were  to  substitute  his  own  name  for  that 
of  the  legatee,  or  were  to  promise  the  testator  to  stand 
as  trustee  for  another,  so  that  the  question  raised  does 
not  aifect  either  the  validity  of  the  will  or  the  propriety 
of  the  grant  of  probate,  equity  may  decree  a  trust.^     Or 

2  How.  U.  S.  645,  the  question  was  raised,  but  not  decided,  the  Court 
holding  the  complainant  entitled  at  least  to  discovei'y. 

^  In  Allen  v.  McPherson,  1  H.  Lords  Cas.  101,  L.  Ch.  Cottenham  took 
a  distinction  between  fraud  in  obtaining  particular  provisions  in  a  will, 
and  fraud  in  obtaining  a  will  generally,  and  argued  with  great  force  that 
equity  had  jurisdiction  in  the  former,  though  not  in  the  latter  case.  The^ 
majority  of  the  Lords,  however,  did  not  sustain  the  distinction.  That  was 
a  case,  in  which  the  complainant  alleged  that  the  defendant,  who  was  a 
residuary  legatee,  had  fraudulently  induced  the  testator  to  revoke  legacies 
of  a  large  amount  in  his  (the  complainant's)  favor,  substituting  others  of 
a  trifling  amount,  and  it  was  held  that  the  matter  was  exclusively  within 
the  jurisdiction  of  the  Ecclesiastical  Courts.  In  a  recent  case,  Hindson 
V.  Weatherill,  1  Sm.  &  G.  604,  Vice-Chancellor  Stuart  sustained  a  bill  to 
decree  a  solicitor,  who  had  obtained  a  devise  by  undue  influence,  as  was 
alleged,-  a  trustee  for  the  heir  ;  and  considered  the  jurisdiction  of  equity 
in  such  cases  unquestionable,  notwithstanding  the  decision  in  Allen  v. 
McPherson.  See  also  the  remarks  in  Dimes  v.  Steinberg,  2  Sm.  &  Gifi". 
75  ;  Morgan  v.  Annis,  3  De  G.  &  Sm.  461.  On  appeal,  the  case  of  Hindson 
V.  Weatherill,  was  reversed  on  another  point  (5  De  G.,  M.  &  G.  301) ;  but 
L.  J.  Turner  took  occasion  to  express  very  strong  doubts,  whether  such  a 
bill  were  within  the  jurisdiction  of  equity  at  all.  The  question,  however, 
of  the  validity  of  the  execution  of  a  power  of  appointment  over  personalty 
by  will,  has  been  held  to  stand  on  a  difierent  footing  from  that  of  ordinary 


OF    TESTAMENTARY    ASSETS.  499 

if  it  be  practised,  not  in  reference  to  the  will  itself,  but 
to  its  subsequent  establishment  by  the  Ecclesiastical 
Court,  e.  g.,  by  fraudulently  obtaining  the  consent  of  the 
next  of  kin,  the  executor  *may  be  decreed  ^to  r^oj^q-i 
consent  to  a  revocation  of  the  probate.  But  if 
the  fraud  were  practised  on  the  testator  in  obtaining  the 
will,  so  that  the  contest  really  is  whether  the  will  ought 
to  be  proved,  the  proper  course  is  to  oppose  the  grant  of 
probate,  and  there  appears  to  be  no  jurisdiction  in  equity 
to  relieve.  («) 

The  validity  of  a  will  of  real  estate,  and  of  the  conse- 
quent title  of  the  devisee,  is  triable  only  by  the  Courts  of 
common  law.  If  the  devisee,  being  out  of  possession, 
seeks  to  enforce  the  will,  or  if  the  heir,  being  out  of  pos- 
session, seeks  to  set  it  aside,  their  respective  modes  of 

(o)  Gingell  v.  Home,  9  Sim.  539 ;  Walsh  ».  Gladstone,  1  Ph.  294 ;  Allen 
».  McPherson,  1  Ph.  133  ;  1  House  of  Lords  Cases  191. 

testamentary  dispositions,  and  the  jurisdiction' of  chancery  to  inquire  into 
the  state  of  mind  of  the  tesCator,  and  the  influences  brought  to  bear  upon 
it,  so  far  as  they  affect  that  validity,  asserted :  Morgan  v.  Annis,  3  De  G. 
&  Sm.  461.  It  appears  to  be  settled  in  England,  that  pending  a  suit  in 
the  Ecclesiastical  Court,  to  recall  probate  of  a  will,  alleged  to  have  been 
fraudulently  obtained  from  the  testator,  by  the  executor  and  one  of  the 
legatees,  a  bill  for  an  account  and  receiver  may  be  sustained  against  the 
latter:  Dimes  v.  Steinberg,  2  Sm.  &  Giff.  75.  Without  some  such  qualifi- 
cation, indeed,  the  broad  doctrine  of  Allen  v.  McPherson,  and  that  held  in 
this  country,  might  be  productive  of  very  great  hardship  and  injustice. 
Relief  by  discovery,  injunction  and  account,  ia  peculiarly  necessary  in  the 
case  of  a  will  obtained  by  fraud  ;  while  it  is  generally  beyond  the  scope 
of  the  procedure  of  the  Ecclesiastical  or  Probate  Courts.  See  also,  Gaines 
V.  Chew,  2  How.  U.  S.  619,  and  Story's  Eq.,  |  184,  note.  Whatever  be  the 
true  principle  upon  the  general' question,  however,  there  is  no  doubt  that 
where  a  devise  is  fraudulently  obtained  on  a  promise  to  hold  the  land  in 
trust  for  another,  the  trust  may  be  enforced  in  e4uity :  Jones  v.  McKee,  3 
Penn.  St.  496  ;  s.  c.  6  Id.  428  ;  Jenkins  v.  Eldredge,  3  Story  181 ;  Howell 
».  Baker,  4  Johns.  Ch.  118;  Hoge  v.  Hoge,  1  Watts  213  ;  Miller  ».  Pearce, 
6  W.  &  S.  97 ;  Gaither  v.  Gaither,  3  Md.  Ch,  158. 


500  ADAMS's    DOCTRINE    OF    EQUITY. 

doing  so  are  by  ejectment  at  law.  If  there  be  outstand- 
ing terms  or  other  legal  impediment,  they  may  respect- 
ively come  into  equity  to  have  them  removed.^  If  either 
party,  being  in  possession,  fears  that  his  possession  may 
be  subsequently  disturbed,  he  may  perpetuate  the  testi- 
mony on  a  proper  bill ;  or  if,  after  a  satisfactory  verdict 
and  judgment,  he  is  harassed  by  repeated  ejectments,  he 
may  have  an  injunction  to  restrain  them  on  a  bill  of 
peace.  But  neither  party  can  resort  to  the  Court  of 
Chancery  as  a  tribunal  for  the  trial  of  the  will.  If,  how- 
ever, there  be  a  trust  to  perform  or  assets  to  administer, 
so  that  the  will  is  drawn  within  the  cognisance  of  equity, 
there  is  an  incidental  jurisdiction  to  declare  the  will  is 
established,  after  first  directing  an  issue  devisavit  vel  nan, 
to  try  its  validity  at  law.^     By  the  old  practice  it  was 

^  Where  the  heir  out  of  possession  seeks  to  set  aside  a  "will,  and  an  im- 
pediment exists  as  to  part,  as^  in  the  case  of  land,  an  outstanding  trust 
term,  he  may  come  into  equity  on  account  of  the  inadequacy  of  the  remedy 
at  law ;  and  the  jurisdiction  having  attached  as  to  part,  may  be  retained 
as  to  all :  Brady  v.  McCosker,  1  Comstock  214. 

*  The  law,  as  stated  in  the  text,  if  it  ever  had  a  solid  foundation,  has 
been  entirely  overthrown  in  England,  by  the  recent  decision  in  Boyse  v. 
Rossborough,  3De  G.,  M.  &G.  817  ;  18  Jur.  205  ;  affirming  s.  c.  1  Kay  71 ; 
and  affirmed  in  the  House  of  Lords,  in  Colclough  v.  Boyse,  6  H.  Lds.  Cas. 
1  ;  in  which  it  was  held  that  the  Court  has  jurisdiction  to  establish  a  will 
of  lands,  as  against  the  heir  at  law  oat  of  possession,  at  the  suit  of  a  legal 
devisee ;  though  the  estate  of  the  latter  be  unaffected  by  a  trust,  and, 
though  there  be  no  other  ground  for  the  intervention  of  equity,  than  for 
the  speedy  determination  of  the  question.  It  was  shown  that  such  had 
been  the  uniform  doctrine  of  chancery,  from  the  earliest  times.  The  ob- 
ject of  such  a  bill  is  to  compel  the  heir  to  try  the  validity  of  the  will  at 
once,  and  it  is  recommended  by  obvious  motives  of  convenience  and  justice. 
If  no  such  remedy  existed,  a  devisee  might  be  subject  to  serious  difficulty 
in  making  title,  by  adverse  claims  of  the  heir,  though  the  latter,  neverthe- 
less, did  not  choose  to  sultject  them,  at  the  time,  to  the  test  of  an  eject- 
ment. It  is  to  be  understood,  of  course,  that  on  a  bill  of  this  nature,  the 
principal  question  is  to  be  tried  by  an  issue  of  devisavit  vel  non,  or  by  an 
action  directed  by  the  court. 

As  the  title  to  land  can  only  be  settled  in  the  forum  rei  sitce,  a  bill  to 


OF    TESTAMENTARY    ASSETS.  501 

necessary  to  establish  a  will  against  the  heir,  whenever 
the  Court  was  called  upon  to  execute  its  trusts,  but 
the  rule  is  now  abolished.  The  issue  of  devisavit  vel  non 
when  a  declaration  of  establishment  is  asked,  is  demand- 
able  as  of  right  by  the  heir;  for  he  can  be  disinherited 
only  by  the  verdict  of  a  jury.  But  he  may  waive  this 
right  by  his  conduct.  He  is  also  entitled  to  demand, 
that  on  trial  of  the  issue,  the  devisee  shall  not  confine  the 
proof  of  execution  to  a  single  witness,  but  shall  give  all 
possible  information  *as  to  the  validity  of  the 
will  by  examining  every  attesting  witness  who  '-  ^ 
is  capable  of  being  produced.  (J) 

Assuming  the  right  of  a  personal  or  real  representative 
to  be  established,  whether  that  of  an  executor  or  devisee, 
or  that  of  an  administrator  or  heir,  there  is  an  equity  for 
administering  the  assets  of  the  testator  or  intestate,  origi- 
nating in  the  inefficacy  of  the  ordinary  tribunals.^ 

(6)  Kerrich  v.  Bransby,  7  B.  P.  C.  437 ;  Pemberton  v.  Pemberton,  13 
Ves.  290,  297 ;  Bootle  v.  Blundell,  19  Id.  494 ;  31  Order  of  Aug.  1841 ; 
Tatham  t.  Wright,  2  R.  &  M.  1  ;  Man  v.  Ricketta,  7  Beav.  93. 

establish  a  will,  will  not  affect  real  estate  beyond  the  jurisdiction  of  the 
Court  in  which  it  is  brought  Accordingly,  in  Boyse  v.  Colclough,  24  L. 
J.  Ch.  7  ;  1  Kay  &  John.  124,  another  branch  of  the  case  just  mentioned, 
it  was  held  to  be  no  answer  to  a  bill  of  this  character  as  to  land  in  Eng- 
land, that  such  a  bill  had  been  filed  by  the  same  devisee  in  Ireland,  and 
that  an  issue  of  devisavit  vel  non  had  been  determined,  and  a  decree  made, 
establishing  the  validity  of  the  will. 

^  In  most  of  the  United  states  the  jurisdiction  over  the  administration 
of  the  estates  of  decedents  is  placed  in  the  hands  of  special  tribunals,  enti- 
tled Courts  of  Probate,  Surrogate,  or  Orphans'  Courts,  which,  in  general, 
possess  the  combined  powers  of  the  Court  of  Chancery,  and  the  Ecclesiasti- 
cal Courts  in  England  upon  the  subject.  Proper  means  are  provided  to 
compel  the  executors  and  administrators  to  collect  the  assets,  to  settle  pro- 
per accounts,  and  to  satisfy  the  claims  of  creditors,  legatees,  and  distribu- 
tees. But  it  sometimes  happens,  that  in  order  to  the  relief  required,  other 
remedies  than  those  which  are  incident  to  the  procedure  in  these  tribunals, 
are  necessary,  in  which  case  a  resort  to  Chancery  becomes  unavoidable.  See 


502  ADAMS's    DOCTRINE    OF    EQUITY. 

The  first  difficulty  which  calls  for  equitable  aid  is  that 
of  compelling  the  executor  or  administrator  to  get  in  the 
assets.  With  respect  to  any  assets  which  he  has  actually 
received,  there  are  means,  though  not  effectual  ones,  for 
making  him  account.  But  if  he  neglects  or  refuses  to 
get  in  the  assets,  the  Court  of  Chancery  alone  can  enforce 
collection,  (c) 

With  respect  to  assets  actually  received,  the  executor 
or  administrator  may  be  sued  by  any  creditor  in  a  Court 
of  law;  and  if  he  does  not  by  his  plea  deny  the  receipt, 
or  if  the  plaintiff  is  able  to  falsify  his  denial,  judgment 
will  be  obtained  against  him.  But  there  are  no  means  at 
law  for  obtaining  discovery  of  the  assets  on  oath,  nor  for 
distributing  them  ratably  among  all  the  creditors.  The 
remedy  of  a  legatee  at  law  is  still  more  limited;  for  a 
general  legacy,  whether  pecuniary  or  residuary,  cannot 
be  there  recovered;  and  even  a  specific  legacy,  which  is 
more  favorably  treated,  cannot  be  recovered  unless  the 
executor  has  assented  to  the  bequest.  (J  )^ 

(c)  Pearse  v.  Hewitt,  7  Sim.  471. 

[d)  Deeks  v.  Strutt,  5  T.  690 ;  Jones  v.  Tanner,  9  B.  &  C.  542. 

Pharis  v.  Leachman,  20  Ala.  662.  Thus  a  bill  may  be  filed  by  a  creditor, 
to  subject  real  or  personal  property,  fraudulently  disposed  of  by  the  dece- 
dent in  his  lifetime,  to  his  debts  :  Hagan  v.  Walker,  14  How.  U.  S.  29  ; 
Pharis  v.  Leachman,  ut  supr.  Or  to  follow  assets  which  have  passed  into 
the  hands  of  legatees  or  distributees,  where  the  remedies  against  the  exe- 
cutor have  been  exhausted  :  Ledyard  v.  Johnston,  16  Ala.  548.  Or  where 
the  executor  is  insolvent  or  irresponsible  :  Ragsdale  v.  Holmes,  1  S.  C.  91 . 
In  many  of  the  states,  indeed,  the  ordinary  creditors'  bills  are  still  enter- 
tained. See  Story  Eq.  §  543.  In  Gould  v.  Hayes,  19  Ala.  438,  it  was  held, 
that  the  original  jurisdiction  of  equity,  is  not  aiFected  by  the  statutory 
jurisdiction  conferred  on  the  Orphans'  Court  and  similar  tribunals,  except 
where  there  are  prohibitory  or  restrictive  words.  See  also  Freeland  v. 
Dazey,  25  111.  294. 

^  A  legacy  cannot  be  legally  reduced  into  possession  by  the  legatee,  with- 
out the  consent  of  the  executor  ;  but  that  need  not  be  expressly  proved  ; 


OF    TESTAMENTARY    ASSETS.  503 

In  the  Ecclesiastical  Court  any  creditor  or  legatee,  or 
other  person  having  an  interest  may  compel  the  executor 
or  administrator  to  deliver  an  inventory  on  oath.  A  cred- 
itor, however,  has  no  power  in  that  Court  to  dispute  the 
truth  of  the  inventory,  or  to  enforce  the  payment  of  his 
*debt,  but  is  remitted  for  that  purpose  to  the 
Courts  of  law.  A  legatee  or  next  of  kin  may  dis-  •-  "  -• 
prove  or  object  to  the  inventory,  and  may  also,  after  as- 
sent, recover  his  legacy  or  distributive  share;  but  there 
are  no  means  by  which  assent  can  be  compelled,  or  the 
clear  residue  ascertained. 

It  has  been  somtimes  said  that  an  executor  holds  the 
assets  in  the  character  of  a  trustee,  and  that  the  jurisdic- 
tion attaches  on  the  existence  of  a  trust.  This,  however, 
does  not  seem  to  be  strictly  accurate.  It  is  true  that  in 
one  sense  an  executor  may  be  called  a  trustee,  as  any 
man  may  be  so  called  who  is  bound  to  apply  property  for 
the  benefit  of  others;  but  he  is  not  a  trustee  in  the  tech- 
nical sense.  It  is  his  duty  to  pay  the  creditors  and  lega- 
tees out  of  the  assets,  and  he  is  personally  liable  if  he 
neglects  to  do  so.  But  there  is  no  trust  affecting  the  as- 
sets themselves.  He  may  dispose  of  them  to  a  purchaser 
in  the  absence  of  actual  fraud,  without  affecting  him  with 
a  trust  by  notice;^  he  may  sustain  or  defend  a  suit  in 

it  may  be  inferred  from  circumstances,  though  the  legatee  is  himself  the 
executor:  Cliester  v.  Gre^,  5  Humph.  26:  Cook  v.  Burton,  5  Bush  (Ky.) 
64.  Where  the  estate  of  a  testator  is  not  indebted,  the  executor  is  bound 
to  assent  to  a  specific  legacy.     See  Price  v.  Nesbit,  1  Hill.  Ch.  445. 

*  See,  to  the  same  effect,  Field  v.  Schieffelin,  7  Johns.  Ch.  155 ;  Hertell 
r.  Bogert,  9  Paige  57 ;  Tyrrell  v.  Morris,  1  Dev.  &  Batt.  Eq.  559 ;  Bond  c. 
Ziegler,  1  Kelly  324 ;  Miles  v.  Durnford,  1  De  G.,  M.  &  G.  64 ;  Haynes 
V.  Forshaw,  17  Jur.  930;  though  in  some  of  the  United  States,  an  adminis- 
trator being  required  to  sell  at  psblic  sale,  it  is  held  that  a  private  sale 
passes  no  title:  Fambro  v.  Gantt,  12  Ala.  305 ;  Baines  v.  McGee,  1  Sm.  & 
M.  208  ;  Saxon  v.  Barksdale,  4  Dessaus.  526  ;  but  see  Bond  r.  Ziegler,  ut 


504  ADAMs's    DOCTRINE     OF    EQUITY. 

equity  without  joining  the  creditors  or  legatees  as  parties; 
if  he  neglect  to  invest  a  legacy  he  will  not,  like  an  ordi- 
nary trustee,  be  liable  for  loss  occasioned  by  the  delay,  or 
for  any  increased  value,  which  if  sooner  invested,  the 
legacy  would  have  borne.  And  it  is  not  until  the  debts 
and  legacies  are  paid,  and  the  residue  ascertained  and  ap- 
propriated, or  until  some  legacy  has  been  set  apart  from 
the  general  fund,  that  his  representative  character  ceases, 
and  he  becomes  a  trustee  of  such  residue  or  appropriated 
legacy,  and  is  subject,  in  respect  of  it,  to  the  ordinary 
rules  respecting  trust  property,  (e)  The  position  of  the 
heir  or  devisee  is  very  similar  to  that  of  the  executor  oi* 
administrator.     He  is  not  technically  a  trustee  for  cred- 

(e)  Byrchall  v.  Bradford,  6  Mad.  13,  235;  Phillipo  v.  Munnings,  2  M.  & 
C.  309 ;  Willmott  v.  Jenkins,  1  Beav.  401  ;  Say  v.  Creed,  3  Hare  455. 

supr.  But  if  the  purchaser  has  notice  that  the  transaction  amounts  to  a 
devastavit,  he  is  liable  to  legatees  and  distributees,  and  the  property  may 
be  pursued :  Field  v.  Schieflfelin,  ut  supr. ;  Colt  v.  Lasnier,  9  Cowen  320 ; 
Williamson  v.  Branch  Bank,  7  Ala.  906;  Parker  v.  Gilliam,  10  Yerg.  394; 
Garnet  v.  Macon,  6  Call  361  ;  Petrie  v.  Clark,  11  S.  &  R.  388;  Graff  v. 
Castleman,  6  Rand.  204;  Lowry  v.  Farmers'  Bank,  3  Am.  L.  J.  N.  S.  Ill ; 
Williamson  v.  Morton,  2  Md.  Ch.  94 ;  Patterson  v.  Patterson,  63  N.  C.  322. 
At  law,  actual  collusion  is  necessary,  but  equity  regards  the  whole  trans- 
action :  Williamson  v.  Morton.  A  transfer  by  way  of  security  for,  or  in 
extinguishment  of  a  private  debt  of  the  executor,  is  sufficient  notice : 
Petrie  v.  Clark  ;  Field  v.  Schieffelin  ;  Williams  v.  Branch  Bank  ;  William- 
son V.  Morton  ;  Dodson  v.  Simpson,  2  Rand.  294.  But  a  pledge  for  a  con- 
temporaneous advance  in  good  faith  has  been  held  within  the  general 
rule :  Tyrrell  v.  Morris,  1  Dev.  &  Bat.  Eq.  559  ;  see  Petrie  v.  Clark ;  Miles 
V.  Durnford ;  Ashton  v.  The  Atlantic  Bank,  3  Allen  217. 

A  distinction  has  been  taken  in  England,  in  this  respect,  between  par- 
ticular and  general  or  residuary  legatees, — the  latter  not  being  permitted, 
as  against  the  purchaser,  to  question  a  disposition  of  the  assets  by  the 
executors :  McLeod  v.  Drummond,  14  Ves.  361 ;  ace.  McNair's  App.  4 
Rawle  155 :  contra,  Johnson  v.  Johnson.  2  Hill  Eq.  277 ;  and  see  Lord 
Eldon's  remarks,  17  Ves.  169,  170. 

The  doctrine  just  considered,  it  is  almost  unnecessary  to  state,  applies 
only  to  personal  estate :  Brush  v.  Ware,  15  Pet.  93. 


OF    TESTAMENTARY    ASSETS.  505 

itors,  but  is  bound  to  pay  them  so  far  as  the  assets  will  go. 
He  is  accountable  in  equity  on  the  same  principle,  and  if 
he  refuses  to  get  in  the  outstanding  *estate,  the    r^o^nn 
creditors  may  enforce  its  collection  in  the  same 
way.(/) 

In  exercising  the  jurisdiction  to  administer  assets,  all 
such  assets  as  would  be  recognised  at  law  are  termed  legal 
assets,  and  are  administered  in  conformity  with  legal  rules, 
by  giving  priority^  to  debts  in  order  of  degree  ;^  so  that 
debts  of  a  higher  degree  are  discharged  before  those  of  a 
lower;  and  debts  of  equal  degree  are  discharged  pari 
passu,  sul)ject  to  the  executor's  right  of  retaining  any  debt 
due  to  himself  in  preference  to  other  creditors  of  the  same 
degree.  The  priority  of  debts  is  according  to  the  follow- 
ing order,  viz.  :  1.  Debts  due  to  the  Crown  by  record  or 
specialty,  which  have  priority  over  all  other  debts,  as  well 
of  a  prior  as  of  a  subsequent  date ;  2.  Certain  specific 
debts  which  are  by  particular  statutes  to  be  preferred ;  ( g) 
3.  Debts  by  judgment  or  decree,  and  immediately  after 
them  debts  by  recognisance  of  statute;  4.  Debts  by  spe- 
cialty, as  on  bonds,  covenants,  and  other  instruments  under 
seal ;  but  if  the  bond  or  covenant  be  merely  voluntary,  it 
will  have  priority  over  legacies  only,  and  will  be  postponed 
to  simple  contract  debts,  bond  fide  owing  for  valuable  con- 
sideration ;(/«)^  5.  Debts  on  simple  contract,  as 'on  bills  or 

(/)  Burroughs  v.  Elton, 4 1  Ves.  29. 

\g)  2  Wms.  on  Exts.  723.  (A)  Lady  Cox's  Case,  3  P.  Wms.  339. 

*  When  the  assets  are  legal,  Chancery  follows  the  rules  of  law,  in  order 
to  prevent  confusion  in  the  administration  of  the  estate :  Moses  r.  Murga- 
troyd,  1  Johns.  Ch.  119;  Atkinson  v.  Gray,  18  Jur.  283.  Especially  will 
priorities  of  liens  be  regarded ;  judgment  creditors  are  entitled  in  equi.y 
to  their  legal  priority  in  payment  out  of  the  legal  assets.  See  Purdy  v. 
Doyle,  1  Paige  Ch.  558  :  Pascalis  v.  Canfield,  1  Ed.  Ch.  201 ;  also  Thompson 
V.  Brown,  4  Johns.  Ch.  619 :  and  the  remarks  upon  it  in  Wilder  r.  Keeler, 
3  Paige  107 ;  Averill  v.  Loucks,  6  Barb.  S.  C.  470. 

'  The  rule  which  entitles  a  specialty  creditor  to  preferences  over  legal  as- 


506  ADAMS's    DOCTRINE    OF    EQUITY. 

notes  and  agreements  not  under  seal,  on  verbal  promises, 
and  on  promises  implied  by  law. 

There  are  also  other  assets,  recognised  in  equity  alone, 
which  are  termed  Equitable  Assets,  and  are  distributed 
among  the  creditors  pari  passu,  without  regard  to  the 
quality  of  their  debts. 

Legal  assets  may  be  defined  as  "  those  portions  of  the 
property  of  a  deceased  person  of  w^hich  his  executor  or 
heir  may  gain  possession,  and  in  respect  whereof  he  may 
be  made  chargeable,  by  the  process  of  the  ordinary  tri- 
bunals, and  without  the  necessity  of  equitable  interfer- 
ence."^ They  consist  first  of  the  personal  estate,  to  which 
P^j-or  q-i  the  executor  *or  administrator  is  entitled  by  vir- 
tue of  his  office ;  and  secondly,  of  the  real  estate 
descended  or  devised,  except  where  the  devise  is  for  pay- 
ment of  debts  ;  a  devise  of  this  latter  kind  rendering  the 
estate,  as  we  shall  hereafter  seej^equitable  instead  of  legal 
assets. 

sets,  applies  equally  where  the  debt  is  not  yet  due,  and  the  executor  is 
bound  to  set  aside  a  fund  for  its  payment  when  the  time  arrives,  to  the  ex- 
clusion of  simple  contract  creditors,  if  necessary :  Atkinson  v.  Grey,  18 
Jur.  283. 

^  Assets,  however,  actually  realized,  from  whatever  source,  and  in  the 
hands  of  the  executor  as  money,  are  legal  assets.  So  the  proceeds  of  real 
estate,  directed  by  the  court  to  be  sold  for  the  payment  of  debts,  and  paid 
by  the  purchaser  into  court,  are  legal  assets  :  Lovegrove  v.  Cooper,  2  Sm. 
&  G.  271 ;  see  Story  Eq.,  s.  551 ;  see  also,  Southwestern  R.  R.  v.  Thomason, 
40  Ga.  408  ;  Vaughan  v.  Deloatch,  65  N.  C.  378. 

The  distinction  between  legal  and  equitable  assets  was  Avell  stated  by 
Vice-Chancellor  Kindersley  in  Cook  v.  Gregson,  3  Drew.  549,  in  the  fol- 
lowing terms  :  "  The  general  proposition  is  clear  enough  that  where  assets 
may  be  made  available  in  a  court  of  law,  they  are  legal  assets,  and  where 
they  can  only  be  made  available  through  a  court  of  equity,  they  are  equi- 
table assets.  The  proposition,  however,  does  not  refer  to  the  question 
whether  the  assets  can  be  recovered  by  the  executor  in  a  court  of  law  or  in 
a  court  of  equity.  The  distinction  refers  to  the  remedies  of  the  creditor, 
and  not  to  the  nature  of  the  property."  See  also,  Shee  v.  French,  3  Drew. 
716,  and  Mutlow  v.  Mutlow,  4  De  G.  &  J.  539. 


OF    TESTAMENTARY    ASSETS.  507 

The  common  law  rule  as  to  the  liability  of  real  estate, 
restricted  such  liability  within  a  narrow  compass.  The 
leasehold  estates  of  the  debtor  were  included  in  his  per- 
sonalty, and  were  of  course  liable  for  all  the  debts.  But 
his  freeholds  were  only  liable  for  debts  by  specialty,  ex- 
pressly naming  the  heirs  ;  and  if  the  descent  were  broken 
by  a  devise,  or  if  the  heir  aliened  before  action  brought, 
there  was  no  proceeding  at  law  or  in  equity  by  which 
that  realty  could  be  affected.  In  1691  it  was  enacted, 
that  "  devises,  unless  for  payments  of  debts,  should  be 
treated  as  fraudulent  and  void  as  against  specialty  cred- 
itors ;  that  the  devisee  should  be  liable  jointly  with  the 
heir  on  a  specialty  recoverable  by  action  of  debt,  and  that 
if  descended  real  estate  were  aliened  by  the  heir,  he 
should  be  liable  to  the  extent  of  its  value."  (*')  In  1807 
a  bill  was  introduced  and  carried  by  Sii'  Samuel  Romilly, 
making  the  real  estate  of  persons  who  at  the  time  of 
their  decease  were  subject  to  the  Bankrupt  Laws  liable 
to  all  their  debts,  but  reserving  to  creditors  by  specialty 
their  privilege  of  precedence.  (A")  The  provisions  of  the 
acts  of  1691  and  1807  were  at  a  later  period  consolidated 
and  enlarged,  and  powers  were  conferred  on  the  Court  of 
Chancery  to  render  effectual  any  sales  or  mortgages 
which  might  be  required  for  satisfaction  of  debts,  not- 
withstanding the  infancy  or  other  incapacity  of  the  heir 
or  devisee. (/)  By  the  last  statute  on  the  subject,  the 
injustice  which  so  long  existed  has  been  abolished ;  and 
the  land  of  every  debtor,  whether  trader  or  not,  and  as 
well  copyhold  as  freehold,  which  he  shall  not  by  Avill 

(i)  3  &  4  Wni.  &  Mary,  c.  14,  made  perpetual  by  6  &  7  Wm.  3,  c.  14. 
[k)  47  Geo.  3,  c.  74. 

{I)  11  Geo.  4  &  1  Wm.  4,  c.  47  ;  2  &  3  Vict.  c.  60  ;  Price  v.  Carver,  3  M. 
&  C.  157 ;  Scholefield  v.  Heafield,  7  Sim.  669  5  s.  c.  8  Id.  470. 


508  ADAMS's    DOCTRINE    OF    EQUITY. 

r^nrj^-i  havG  ^charged  with  or  devised,  subject  to  the 
payment  of  his  debts,  is  made  assets,  to  be  ad- 
ministered in  equity,  for  payment  of  both  simple  contract 
and  specialty  debts,  reserving,  however,  to  creditors  by 
specialty  in  which  the  heirs  are  bound,  the  same  priority 
which  they  originally  possessed,  (m)^  The  case  of  a 
charge  for  payment  of  debts,  or  of  a  devise  subject  to  such 
payment  is  expressly  excepted  from  the  operation  of  the 
act,  and  retains  its  original  effect  of  exempting  the  pro- 
perty as  legal  assets,  and  converting  it  into  equitable 
assets. 

In  addition  to  the  two  kinds  of  legal  assets,  the  per- 
sonal and  the  real,  which  have  been  already  mentioned, 
there  is  also  a  third  kind,  which  though  not  obtainable 
without  the  intervention  of  equity,  and  therefore  not  in 
strictness  legal  assets,  is  yet,  when  obtained,  to  be  ad- 
ministered as  such,  viz.,  property  held  by  a  trustee  for 
the  testator.  For  although  the  benefit  of  the  trust,  if 
resisted,  cannot  be  enforced  without  equitable  aid,  yet 
the  analogy  of  law  will  regulate  the  application  of  the 
fund.  In  one  instance,  that  of  a  fee  simple  estate  held 
on  trust  for  the  testator,  the  trust  is  made  legal  assets 
by  the  Statute  of  Frauds,  so  as  to  charge  the  heir  in  a 
Court  of  Law.(w) 

Equitable  assets  may  be  defined  as  those  portions  of 
the  property  which  by  the  ordinary  rules  of  law,  are  ex- 
empt from  debts,  but  which  the  testator  has  voluntarily 
charged  as  assets,  or  which,  being  non-existent  at  law, 
have  been  created  in  equity.^ 

(w)  3  &  4  Wm.  4,  c.  104. 

(n)  29  Car.  2,  c.  3,  s.  10 ;  Case  of  Cox's  Creditors,  3  P.  Wms.  341. 

'  See  under  this  statute,  Foster  v.  Handley,  1  Sim.  N.  S.  200. 

'  In  the  most  of  the  states  of  the  Union,  the  doctrine  of  equitable  assets 


OF    TESTAMENTARY    ASSETS.  509 

Equitable  assets  of  the  first  class  consist  of  real  estate 
devised  for  or  charged  with  the  payment  of  debts.  We 
have  already  seen  that  under  the  old  law,  if  the  descent 
were  broken  by  a  devise,  the  liability  as  assets  was  de- 
stroyed ;  and  that  the  statutes  for  the  abolition  of  that  law 

has  been  rendered  of  very  limited  application,  by  legislative  enactments, 
on  the  one  hand  destroying  preferences  among  the  creditors  of  a  decedent, 
and  on  the  other,  subjecting  every  species  of  property  of  the  decedent, 
equally,  to  liability  for  his  debts.  And,  even  in  those  states  where  statu- 
tory preferences  are  given,  as  all  assets  are  now  in  effect  legal,  equity  can- 
not disregard  the  established  order.  See  on  this  subject  the  notes  to  Silk 
V.  Prime,  2  Lead.  Cas.  Eq.,  3d  Am.  ed.  82;  Sperry's  Est.,  1  Ashm.  347  ; 
Bloodgood  r.  Bruen,  2  Bradf.  Surr.  8  ;  Stagg  v.  Jackson,  1  Comst.  206. 
Where  no  such  enactments  have  existed,  it  has  prevailed  in  full  effect.  See 
Torr's  Est,,  2  Rawle  250.  Thus,  formerly  in  New  York  it  was  decided  that 
the  devise  of  an  estate  in  trust  to  pay  debts,  and  distribute  the  residue, 
made  the  proceeds  of  the  estate  equitable  assets,  out  of  which  creditors 
were  to  be  paid  pari  passu.  Benson  v.  Le  Roy,  4  Johns.  Ch.  651  ;  see 
Cornish  v.  Wilson,  6  Gill  303.  So  in  Virginia,  moneys  arising  from  the 
sale  of  real  property  are  equitable  assets,  and  to  be  applied  equally  to  all 
the  creditors,  in  proportion  to  their  claims  :  Backhouse  r.  Patton,  5  Peters 
160 ;  Black  V.  Scott,  2  Brock.  325.  So  in  Kentucky,  refer  to  Hilar  v. 
Darby's  Adm'rs.,  3  Dana  18  ;  Cloudas'sEx'r,  v.  Adams,  4  Id.  603  ;  Speed's 
Ex'r.  r.  Nelson's  Ex'r.,  8  Monr.  499.  See  also  on  the  doctrine,  Henderson 
t.  Burton,  3  Ired.  Ch.  259.  Devises  of  real  estate  in  trust  for  the  payment 
of  debts,  or  charges  on  land  for  that  purpose,  are  also  recognised,  and  given 
very  much  the  same  effect,  as  in -England,  except  so  far  as  they  would  in- 
terfere with  statutory  preferences  or  regulations :  Carrington  ».  Manning, 
13  Ala.  628 ;  Hines  r.  Spruill,  2  Dev,  &  Batt.  93  ;  McHardy  v.  McHardy, 
7  Flor.  301  ;  Agnew  v.  Fetterman,  4Penn.  St.  62  ;  Hooverp.  Hoover,  5  Id. 
357  ;  Walker's  Est.,  3  Rawle  229.  A  sale  by  the  trustees  under  such  cir- 
cumstances, will  discharge  Che  statutory  lien  of  debts  :  Cadbury  v.  Duval, 
10  Penn,  St,  267  ;  and  such  a  trust  will  prevent  the  lien  of  judgments 
from  expiring  from  want  of  revival:  Baldy  r.  Brady,  15  Penn,  St,  111. 
These  trusts  and  charges,  however,  as  they  are  no  longer  necessary  to  en- 
able creditors  to  reach  the  land,  are  not  regarded  with  as  great  favor,  nor 
is  the  same  forced  construction  resorted  to  in  order  to  their  establishment, 
as  formerly  :  Agnew  v.  Fetterman,  4  Penn,  St.  62  ;  Carringotn  v.  Manning, 
13  Ala.  628  ;  Hines  v.  Spruill,  2  Dev,  &  Batt,  Eq,  93.  Where  the  statute 
directs  equal  distribution  amongst  creditors,  a  trust  by  will  creating  pre- 
ferences, is  so  far  void  :  Bull  c.  Bull,  8  B.  Monr.  332. 


510  ADAMS's    DOCTRINE     OF    EQUITY. 

contain  an  exemption  of  devises  for  payment  of  debts. 
With  respect  therefore  to  such  devises,  the  old  rule  con- 
r*oc;c;-|  tinues ;  and  if  a  testator  devises  land  for  payment 
of  his  debts,  or  subject  to  *a  charge  for  such  pay- 
ment, the  devise  operates  to  destroy  the  original  liability, 
and  to  subject  the  land  to  a  new  liability  by  way  of 
trust.  (<?)  The  same  rule  does  not  apply  to  a  bequest  of 
personalty,  for  such  a  bequest  is  a  mere  nullity  as  against 
creditors,  and  does  not  affect  the  common  law  liability.  (^)^ 
Assets  of  this  kind  may  be  created  in  three  ways  :  viz., 
1.  By  a  devise  to  trustees,  either  in  fee  or  for  a  term,  ac- 
companied by  a  trust  to  sell  or  mortgage,  or  by  a  general 
direction  to  raise  money  out  of  the  profits ;  2.  By  a  devise 
that  the  estate  shall  be  sold,  which,  if  the  person  to  sell 
be  specified,  will  confer  on  him  a  power  of  sale ;  or  if  no 
person  be  specified,  but  the  produce  is  distributable  by 
the  executors,  will  confer  on  them  by  implication  a  simi- 
lar power,  (§')  or,  if  no  person  be  pointed  out,  either  ex- 
pressly or  by  implication,  will  create  a  charge  on  the 
estate ;  and,  3.  By  a  direction  that  the  estate  shall  be 
charged ;  which  will  authorize  a  sale  by  the  person  on 
ivhom  the  legal  estate  has  dev^olved.  (r) 

Equitable  assets  of  the  second  class  consist  of  interests 
either  in  personal  or  real  estate  being  which,  non-existent 
at  law,  have  been  created  in  equity ;  and  the  principal 
assets  of  this  class  are  equities  of  redemption.     So  long 

(o)  Shiphard  v.  Lutwidge,  8  Ves.  26. 

{p)  Scott  V.  Jones,  4  CI.  &  F.  382  ;  Lyon  v.  Colville,  1  Coll.  449. 
{q)  1  Sug.  on  Powers  134 ;  Gosling  v.  Carter,  1  Coll.  644, 
(r)  Shaw  v.  Borrer,  1  Keen  559;  Ball  v.  Harris,  8  Sim.  485 ;  4  M.  &  C 
264. 

'  See  to  the  same  effect,  Carrington  v.  Manning,  13  Ala.  628  ;  Lewis  v. 
/Bacon,  3  Hen.  &  Munf.  106;  Hines  v.  Spruill,  2  Dev.  &  Bat.  Eq.  93  ;  Ag- 
new  p.  Fetterman,  4  Penn.  St.  62 ;  Cornish  v.  Wilson,  6  Gill  318. 


OF    TESTAMENTARY    ASSETS.  511 

as  the  right  of  redemption  exists  at  law,  it  is  not  divested 
of  the  character  of  legal  assets.  And  therefore,  if  the 
heir  or  executor  redeem,  he  is  chargeable  at  law  with  the 
surplus  value ;  and  the  administration  will  be  conducted 
on  the  legal  principle.  (5)  If,  after  forfeiture,  a  reversion 
remains,  to  which  the  equity  of  redemption  is  incident, 
such  equity  will  follow  the  character  of  the  reversion,  and 
will  still  constitute  legal  assets ;  e.  g.,  where  a  fee  simple 
is  mortgaged  for  a  term,  or  a  ^leasehold  is  mort-  r^nrr.-! 
gaged  by  underlease,  (i^)  If,  after  forfeiture,  there 
is  no  reversion,  as,  for  example,  when  a  fee  simple  is  mort- 
gaged in  fee,  or  a  leasehold  by  assignment  of  the  term,  a 
different  rule  prevails ;  for  there  is  nothing  left  in  the 
mortgagor  which  can  be  assets  at  law,  and  the  new  inter- 
est is  a  mere  creation  of  equity.^  It  has  therefore  been 
determined,  notwithstanding  some  doubts  on  the  point, 
that  such  interests  shall  be  equitable  assets.^  Theruje.of 
di\&ix\bui\0Tv  pari  passu,  however,  which  has  been  noticed 
as  incidental  to  equitable  assets,  is  modified  in  its  appli- 
cation to  equities  of  redemption,  in  respect  both  to  judg- 
ment debts  and  to  debts  by  specialty.  It  is  modified  in 
favor  of  judgment  debts  by  permitting  them  to  retain  their 
priority  over  other  claims,  because,  if  such  priority  were 
not  allowed,  the  judgment  creditor  might  acquire  it  by 
redeeming  the  mortgage.  And  it  is  modified  in  favor  of 
the  debts  by  specialty,  where  the  mortgage  is  of  a  free- 

{s)  Hawkins  v.  Lawse,  1  Leon.  155  ;  2  Wms.  on  Ex'rs.  1179. 
\t)  Plunket  V.  Penson,  2  Atk.  290. 

^  In  this  country,  generally,  an  equity  of  redemption  of  mortgaged  real 
estate,  can  be  sold  on  execution  upon  a  judgment  at  law.  Until  foreclo- 
sure, the  mortgagor  remains  seised  of  the  freehold,  and  the  mortgagee  has 
in  effect  but  a  chattel  interest.  See  Clark  v.  Beach,  6  Conn.  142,  159,  160, 
and  cases  there  cited.     See  also,  Kent's  Com.,  vol.  iv.,  p.  160. 

*  But  see  Lovegrove  v.  Cooper,  2  Sm.  &  Giff.  273,  in  note. 


512  ADAMS's    DOCTRINE    OF    EQUITY. 

hold  estate,  by  permitting  them  to  retain  their  priority 
over  simple  contract  debts ;  because  the  claim  of  simple 
contract  creditors  on  the  freehold  estate  originates  in  the 
statute  alone,  and  is  postponed  by  the  same  statute  to  the 
right  of  creditors  by  specialty.  But  so  far  as  those  debts 
are  concerned,  to  which,  independently  of  the  statute, 
the  property  can  be  applied,  the  distribution  \^  pari  passu. 
In  the  case  of  leaseholds,  which  are  chattel  interests,  the 
modification  does  not  apply,  (w) 

The  distinction  made  between  legal  and  equitable  as- 
sets, by  applying  the  former  in  payment  according  to 
priority,  and  the  latter  in  payment  pari  passu,  appears 
to  be  founded  on  sound  principles.  So  far  as  legal  assets 
are  concerned,  there  is  no  interference  with  the  legal 
priorities.  The  creditors  have  advanced  their  funds  in 
reliance  on  those  assets,  and  in  reliance  on  their  being  ap- 
plied in  the  order  settled  by  law.  And  whether  the  law 
r*oFi7-|  t>e  just  or  *unjust,  the  Court  of  Chancery  cannot 
alter  it.  But  it  was  no  part  of  their  original  con- 
tract that  other  funds,  if  available  for  their  debt  at  all, 
should  be  available  in  the  same  order;  and  therefore  if 
other  assets  are  brought  in,  either  by  the  voluntary  gift 
of  the  testator,  or  by  the  special  interposition  of  equity, 
they  may  be  fairly  applied  on  the  principle,  that  equality 
is  equity,  and  that  all  honest  debts  are  equally  entitled 
to  be  paid. 

Where  an  estate  consists  of  both  legal  and  equitable 
assets,  the  rule  is,  that  if  any  creditor  has  obtained  part 
payment  out  of  the  legal  assets  by  insisting  on  his  pre- 
ference, he  shall  receive  no  payment  out  of  the  equitable 

(m)  Case  of  Cox's  Creditors,  3  P.  Wms.  341  ;  Hartwell  v.  Chitters,  Amb. 
308  ;  Sharpe  v.  Scarborough,  4  Ves.  538 ;  Clay  v.  Willis,  1  B.  &  C.  364, 
372 ;  1  Wms.  on  Ex'rs.  1197  ;  Coote  on  Mortgages  60. 


OF    TESTAMENTARY    ASSETS.  513 

assets,  until  the  creditors,  not  entitled  to  such  preference, 
have  first  received  an  equal  proportion  of  their  debts.^ 

The  manner  of  administration  in  equity  is  on  a  bill 
filed,  either  by  creditors  or  by  legatees,  praying  to  have 
the  accounts  taken  and  the  property  administered ;  or  if 
no  creditor  or  legatee  is  willing  to  sue,  then  by  the  exe- 
cutor himself,  who  can  only  obtain  complete  exoneration 
by  having  his  accounts  passed  in  Chancery,  and  is  there- 
fore entitled  to  insist  on  its  being  doue.{vy  The  most 
usual  practice,  however,  is,  that  the  bill  should  not  be 
filed  by  the  executor,  but  by  one  or  more  of  the  creditors 
or  legatees. 

A  single  creditor  may,  if  he  pleases,  file  such  a  bill, 
praying  payment  of  his  own  debt,  and  a  discovery  and 

(r)  Knatchbull  v.  Fearnhead,  3  M.  &  C.  122  ;  Low  v.  Carter,  1  Beav.  426. 

^  See  Chapman  v.  Esgar,  23  Eng.  L.  &  Eq.  597;  1  Sin.  &  Giff.  575; 
Cornish  v.  Wilson,  G  Gill  303  ;  Purdy  v.  Doyle,  1  Paige  558  ;  Wilder  v. 
Keeler,  3  Id.  165.  This  doctrine  is  not  of  very  great  importance  in  this 
country,  as  the  distinction  between  legal  and  equitable  assets  no  longer 
exists.  An  analogous  question,  however,  whether  a  creditor  holding  col- 
lateral security  from  the  debtor  is  entitled,  notwithstanding,  to  claim  on 
the  estate  for  the  full  amount  of  his  debt,  has  given  rise  to  some  conflict 
of  decision.  The  better  opinion  is  in  the  affirmative,  and  that  equity  will 
not  interfere  with  his  legal  right :  West  v.  Bank  of  Rutland,  18  Verm.  403 ; 
Shunk's  App.,  2  Penn.  St.  304 ;  Cornish  v.  Willson,  6  Gill  303  ;  Mason  v. 
Begg,  2  Mylne  &  Cr.  448  ;  Evans  v.  Duncan,  4  Watts  24 ;  Kittera's  Est., 
17  Penn.  St.  416;  though  the  rule  is  otherwise  in  bankruptcy.  See  on 
this  subject  the  notes  to-Aldrich  v.  Cooper,  2  Lead.  Cas  Eq.  56:  and  to 
Silk  I".  Prime,  Id.  82,  &c.  But  the  other  creditors  have,  in  such  case,  the 
right  to  be  subrogated  to  the  securities,  where  they  have  not  been  real- 
ized.    See  post.  Marshalling. 

*  If  an  executor  or  administrator  finds  the  affairs  of  the  estate  so  com- 
plicated as  to  render  the  administration  difficult  and  unsafe,  he  may  in- 
stitute proceedings  in  equity  against  all  the  creditors,  to  have  their  claims 
adjusted  by  the  Court,  and  to  obtain  its  judgment  for  his  guide:  BroAvn 
V.  McDonald,  1  Hill  Ch.  300,  301  ;  Adams  v.  Dixon,  19  Ga.  513  ;  McNeill's 
Adm'r.  v.  McNeill's  Creditors,  36  Ala.  109. 
33 


514  ADAMS's    DOCTRINE     OF     EQUITY. 

account  of  assets  for  that  lourpose  only.  The  decree  on 
such  a  bill  is  not  for  a  general  account  of  debts,  but  for  an 
account  of  the  personal  estate  and  of  the  particular  debt 
claimed,  and  for  payment  out  of  the  personal  estate  in  a 
course  of  administration.  But  no  decree  can  be  made 
against  the  real  estate,  unless  the  account  is  asked  on 
behalf  of  all  the  creditors,  (w) 

The  more  usual  course  is  that  of  a  bill  by  one  or  more 

creditors  on  behalf  *of  all.^     The  decree  on  such 

^        -I   a  bill  is  for  a  general  account  of  the  debts  and 

{w)  Johnson  v.  Compton,  4  Sim.  47. 

'  A  creditor  can  sue  an  executor  or  administrator  in  Chancery  for  an 
account  and  discovery  of  assets,  on  the  ground  of  a  trust  in  the  executor 
or  administrator :  McKay  v.  Green,  3  Johns.  Ch.  56.  And  he  may  come 
into  this  Court,  not  only  for  discovery,  but  for  distribution  of  assets : 
Thompson  v.  Brown,  4  Johns.  Ch.  619,  631. 

A  decree  to  account,  whether  in  a  suit  by  a  single  creditor  for  himself, 
or  for  himself  and  all  the  creditors,  being  deemed  for  the  benefit  of  all, 
all  the  creditors  should  have  notice  to  come  in  and  prove  their  debts  before 
the  Master:  Id.  The  account  cannot  be  taken  for  his  benefit  alone,  but  for 
all  the  creditors  who  choose  to  come  in :  Hazen  v.  Durling,  1  Green  Ch. 
133  ;  see  also  Martin  v.  Densford,  3  Blackf.  295  ;  Judah  v.  Brandon,  5  Id. 
506 ;  Cram  v.  Green,  6  Ham.  429. 

A  bill  to  marshal  assets,  and  for  administration,  should  be  on  behalf  of 
the  complainant  and  all  other  creditors,  and  the  heirs  and  devisees  should 
be  made  parties.  If,  however,  proper  parties  are  not  made,  the  bill  should 
not  be  dismissed,  but  the  complainant  may  have  leave  to  amend,  unless  a 
decree  for  an  account  has  been  made  in  some  other  creditor's  suit.  If  several 
suits  are  pending,  the  Court  may  order  the  proceedings  in  all  but  one  to 
be  stayed,  and  require  the  parties  to  the  others  to  come  in  under  the  de- 
cree. A  creditor  who,  with  knowledge  of  a  decree  in  another  suit,  brings 
a  separate  suit,  will  be  condemned  in  costs.  In  such  cases  the  decree  will 
be  made  in  the  case  first  ready  for  a  hearing,  though  not  the  first  brought : 
Stephenson  v.  Taverners,  9  Gratt.  398. 

Creditors  of  a  deceased  debtor  may  proceed  in  equity  against  his  heirs 
residing  abroad,  as  absent  defendants,  to  marshal  the  assets,  and  thus  sub- 
ject the  land  descended,  or  its  proceeds :  Carrington  v.  Didier,  8  Gratt.  260. 
And  see  Farrar  v.  Haselden,  9  Rich.  Eq.  330.  When  creditors,  being  non- 
residents, could  not  obtain  letters  of  administration,  and  were  unable  to 


OF    TESTAMENTARY    ASSETS.  515 

for  an  account  and  application  of  the  personal  assets.  If 
the  personal  estate  should  prove  insufficient,  a  decree  will 
be  made  against  the  realty/  By  this  means  inconvenient 
preference  of  creditors  is  avoided,  as  well  as  the  burden 
which  separate  actions  or  suits  would  bring  on  the  fund. 
The  bill  is  treated  as  a  demand  on  behalf  of  all  the  cred- 
itors who  may  come  in  and  prove  their  debts  under  it,  so 
as  to  prevent  the  Statute  of  Limitations  from  running 
against  them;  but  in  other  respects  it  continues,  until  de- 
cree, to  be  the  suit  of  the  actual  plaintiff  alone.  He  has 
a  right  either  to  dismiss,  or  compromise  it;  he  may,  if 
assets  are  admitted  and  his  debt  proved  at  the  hearing, 
demand  an  immediate  decree  for  payment;  or,  if  the  ex- 
ecutor offers  payment,  may  be  compelled  to  accept  it. 
When  a  decree  has  been  made,  the  case  is  different.  The 
fund  has  been  taken  into  the  hands  of  the  Court;  the 
original  plaintiff,  though  he  has  still  the  conduct  of  the 
suit,  ceases  to  have  the  absolute  control;  the  general  body 
of  creditors,  for  whose  benefit  the  decree  is  made,  uecome 
entitled  to  intervene ;  and  as  a  necessary  result  from  this 
right  of  intervention,  the  proof  of  the  plaintiff's  debt, 
given  at  the  hearing,  though  good  against  the  executor,  is 
not  good  against  them,  but  it  must  be  again  proved  in  the 
Master's  office,  (a;) 

(x)  Sterndale  8.  Hankinson,  1  Sim.  393 ;  Owens  v.  Dickinson,  Cr.  &  P. 

procure  any  other  persoS  to  administer,  they  were  allowed  to  file  a  bill : 
Garner  ».  Lyles,  35  Miss.  184. 

The  title  of  a  creditor  is  paramount  to  the  heir-at-law ;  and  on  bills  by 
creditors  against  the  devisees  and  the  heir,  the  latter  is  not  entitled  to 
have  the  bill  dismissed  against  him,  or  to  an  issue  of  devisavit  vel  non : 
Spickernell  v.  Hotham,  9  Hare  73.  See  further,  on  the  subject  of  creditor's 
bills,  Postlewait  v.  Howes,  3  Clarke  (Iowa)  365. 

'  A  sale  of  real  estate  may  be  decreed,  though  some  of  the  heirs  are  in- 
fants ;  but  the  claims  of  the  creditors  must  first  be  fully  adjusted,  so  that 
their  amount,  and  the  necessity  of  a  sale,  may  be  ascertained :  Cralle  v. 
Meen,  8  (Jratt.  496. 


516  ADAMS's    DOCTRINE    OF    EQUITY. 

A  legatee  may  file  a  bill  for,  his  single  legacy,  or  on 
behalf  of  all  the  legatees  for  payment  of  all.  But  he  can- 
not in  either  case  have  a  preference  over  the  rest;  and 
therefore,  even  in  a  suit  for  his  single  legacy,  the  decree 
will  not  be  for  payment  of  that  legacy  alone,  unless  the 
executor  has  admitted  assets,  and  thus  subjected  himself 
to  a  personal  decree,  but  will  be  for  a  general  account  of 
legacies,  and  ratable  payment  of  all.(y)* 
r*9^Q1  ^Immediately  on  the  executor's  answer  being 
obtained,  the  balance  which  he  admits  to  be  in 
his  hands  is  secured  by  payment  into  Court.  A  re- 
ceiver of  the  outstanding  personalty,  and  of  the  rents 
and  profits  of  the  real  estate,  is  appointed  if  the  circum- 
stances render  it  necessary.     And  as  soon  as  the   cause 

48,  56;    Woodgate  v.  Field,  2  Hare  211;    Whitaker  v,  Wright,  Id.  310, 
314 ;  Tatam  v.  Williams,  3  Id.  347. 
iy)  Mitf.  168. 

'  As  a  general  rule,  a  legatee  may  sue  the  executor  for  his  own  particu- 
lar legacy,  without  making  the  residuary  legatees  parties  to  the  suit.  Aliter, 
where  one  of  the  residuary  legatees  sues  for  his  share  of  the  residue  ;  an 
account  of  the  estate  being  necessary  in  that  case  :  Cromer  v.  Pinckney,  3 
Barb.  Ch.  466 ;  Pritchard  v.  Hicks,  1  Paige  Ch.  270.  And  see  Brown  v. 
Bicketts,  3  Johns.  Ch.  553.  But  it  has  been  held  that  one  residuary  legatee 
may  file  a  bill  on  behalf  of  himself,  and  all  others  standing  in  the  same 
situation,  and  it  is  not  necessary  to  make  them  all  parties  to  the  suit. 
Where  a  bill  is  for  the  payment  of  a  particular  legacy,  if  the  defendant  ad- 
mits a  suflBciency  of  assets,  a  decree  for  the  payment  may  be  made  without 
any  general  account  of  the  estate.  But  if  it  appears  by  the  answer  that 
there  is  a  deficiency  of  assets,  the  decree  must  be  for  a  general  account,  and 
distribution  among  all  who  may  come  in,  and  establish  their  claims  under 
the  decree  :  Hallett  v.  Hallett,  2  Paige  Ch.  15.  And  see  Marsh  v.  Hague, 
1  Ed.  Ch.  174. 

Jjegatees  and  annuitants  are  bound  by  the  proceedings  in  a  suit  for  ad- 
ministration between  the  executors  and  residuary  legatees  and  devisees, 
although  there  may  be  a  question  as  to  the  debts  being  primarily  charged 
upon  real  estate,  which  may  incidentally  afi'ect  them  ;  they  cannot,  there- 
fore, after  decree  in  such  suit,  sustain  an  administration  suit  against  the " 
executors  :  Jennings  v.  Patterson,  15  Bear.  28. 


OF    TESTAMENTARY    ASSETS.  517 

can  be  brought  to  a  hearing,  a  decree  is  made  for  taking 
the  accounts. 

After  the  decree  has  been  made,  the  assets  will  be  pro- 
tected from  foreign  interference.  It  has  been  already 
stated,  that  until  decree,  the  plaintiff  has  an  absolute  con- 
trol over  the  suit,  and  may  at  his  pleasure  dismiss  or 
compromise  it.  There  is,  therefore,  no  ground  for  re- 
straining other  creditors  from  proceeding  to  enforce  their 
claims.  And  it  is  not  unfrequent  that  up  to  the  decree 
several  actions  and  suits  should  subsist  together,  which 
on  a  decree  being  made,  will  be  stopped  or  consolidated. 
After  a  decree  the  case  is  different.  The  decree  is  not 
confined  to  the  payment  by  the  plaintiff,  but  directs  a 
general  account  and  administration,  under  which  all  cred- 
itors and  legatees  may  claim.  And,  therefore,  if  sepa- 
rate proceedings  be  afterwards  carried  on,  the  assets  will 
be  protected  by  the  Court  from  that  needless  expense. 
In  order  to  obtain  this  protection,  it  is  the  duty  of  the 
executor  to  put  in  his  answer  as  speedily  as  possible,  with 
the  view  to  an  immediate  decree,  and  on  the  decree  being 
made,  to  apply  for  the  necessary  interference.  The  an- 
swer must  contain  a  correct  account,  in  order  that  the 
balance  may  be  paid  into  Court,  and  that  the  executor 
may  be  under  no  temptation  to  create  delay.  If  the  an- 
swer does  not  state  what  the  assets  are,  or  if  the  execu- 
tor be  plaintiff,  so  that  he  cannot  put  in  an  answer,  the 
application  should  be  accompanied  by  an  affidavit,  stating 
the  balance  in  his  hands.  (0)  If  the  executor  neglects  to 
apply,  the  protection  will  be  granted  on  the  application  of 
any  other  party  interested,  (a) ^ 

(z)  Paxton  t".  Douglas,  8  Ves.  520  ;  Gilpin  v.  Southampton,  18  Id.  469. 
(a)  Clarke  v.  Earl  of  Ormonde,  Jac.  108,  122. 

'  After  a  final  decree  has  been  made  for  the  administration  of  a  fund  in 


518  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  separate  proceedings  be  at  law,  the  protection 
will  *be  given  by  injunction.  By  the  old  prac- 
•-  J  tice  this  could  only  be  done  on  a  bill  filed  against 
the  particular  creditor,  but  such  a  bill  is  now  unneces- 
sary ;  and  on  motion  in  the  administration  suit  after  de- 
cree, an  order  will  be  made  restraining  any  creditor  who 
is  seeking,  but  has  not  yet  obtained,  satisfaction  at  law, 
from  proceeding  further  in  this  action.  If  a  judgment 
has  been  obtained  before  decree,  there  may  be  special 
grounds  to  prohibit  him  from  taking  out  execution ;  but 
such  is  not  the  ordinary  rule.  If  the  executor,  by  mis- 
conduct, or  by  a  slip  in  his  defence  at  law,  has  rendered 
himself  personally  liable  for  the  debt,  it  seems  doubtful 
whether  any  equity  exists  for  relieving  him,  and  whether 
the  injunction  will  not  be  limited  to  protect  the  assets 
alone.  (J) 

If  the  separate  proceedings  are  in  equity,  and  in  the 
same  Court  as  the  original  suit,  the  protection  is  obtained 

(6)  Lee  v.  Park,  1  Keen  714;  Buries  v.  Popplewell,  10  Sim.  383 ;  Kirby 
V.  Barton,  8  B^v.  45 ;  Vernon  v.  Thellusson,  1  Ph.  466  ;  Ilanken  v.  Har- 
wood,  5  Hare  215;  2  Ph.  22. 

the  hands  of  executors,  &c.,  for  the  benefit  of  all  creditors  who  have  a 
claim,  the  Court  may  restrain  the  creditor  from  proceeding  at  law.  In  re 
Receiver  of  the  City  Bank  of  Buffalo,  10  Paige  Ch.  378.  But  an  injunc- 
tion will  not  be  granted  to  restrain  creditors  from  proceedings  at  law,  until 
after  an  account  is  decreed :  Mactier  v.  Lawrence,  7  Johns.  C.  C,  206. 

And  a  creditor  cannot,  in  a  bill  against  an  executor  for  his  own  benefit, 
make  another  creditor  a  party  defendant,  and  compel  him  to  desist  from 
prosecuting  his  suit  at  law  against  the  executor :  Simmons  v.  Whitaker,  2 
Ired.  Eq.  129:  and  see  Benson  v.  Le  Roy,  4  Johns.  Ch.  651;  Helm  w. 
Darby,  3  Dana  186. 

Where  lands  have  been  sold  under  a  decree  in  a  suit  by  heirs,  and  the 
proceeds  are  in  the  hands  of  a  commissioner  of  the  Court,  he  may  be  made 
a  party  to  a  bill  by  creditors  to  marshal  assets,  and  be  restrained  by  in- 
junction from  paying  over  the  proceeds  to  the  heirs:  Carrington u.  Didier, 
8  Gratt.  260. 


OF    TESTAMENTARY    ASSETS.  519 

by  an  order  to  stay  the  proceedings  in  the  second  suit, 
and  that  the  plaintiff  may  go  before  the  Master  in  the 
first.'  But  if  additional  relief  be  asked  in  the  second 
suit,  or  a  specific  right  be  contested  in  it,  the  second  suit 
will  go  into  a  hearing,  and  a  properly  modified  decree 
will  be  made.  If  the  second  bill  be  filed  in  a  different 
Court  of  equity,  there  appears  to  be  no  jurisdiction  in 
the  Court  of  Chancery  to  restrain  it,  unless  the  person 
filing  it  has  already  proved  his  debt  under  the  existing 
decree.  But  the  Court  in  which  he  is  unnecessarily 
suing,  on  being  satisfied  of  the  efficacy  of  the  prior  decree, 
will  itself  stay  his  proceedings,  (c) 

When  the  assets  have  been  secured  and  their  adminis- 
tration has  been  undertaken  by  the  Court,  the  next  step 
is  their  distribution. 

The  method  adopted  for  this  purpose  is,  to  refer  it  to 
*the  Master  to  take  an  account  of  the  personal  r*oci-i 
estate  not  specifically  bequeathed,  either  got  in 
by  the  executor  or  still  outstanding,  and  of  the  funeral 
and  testamentary  expenses,  debts  and  legacies ;  and  to 
direct  payment  of  the  expenses  and  debts  in  a  course  of 
administration,  and  afterwards  of  the  legacies.  Under 
the  head  of  testamentary  expenses  are  included  the  exe- 
cutor's costs  of  suit,  and  those  of  the  plaintiff  in  a  cred- 
itor's suit,  as  being  necessarily  incurred  in  administering 
the  estate,  (c?)  If  any  further  directions  are  required, 
either  for  administering  the  real  estate,  or  for  arranging 

(c)  Pott  V.  Gallini,  1  S.  &  S.  206 ;  Jackson  v.  Leaf,  1  J.  &  W.  229,  232 ; 
Beauchainp  c.  Marquis  of  Huntley,  Jac.  546 ;  Moore  v.  Prior,  2  Y.  &  C. 
375  ;  [see  Ostell  v.  Lepage,  16  Jurist  1164.] 

[d)  Larkins  v.  Paxton,  2  M.  &  K.  320 ;  Barker  v.  Wardle,  2  Id.  818 ; 
Tipping  V.  Power,  1  Hare  405. 

^  See  Stephenson  r.  Taverners,  9  Gratt.  398. 


520  ADAMS's    DOCTRINE    OF    EQUITY. 

the  order  in  which  the  assets  shall  be  applied,  they  will 
be  given  by  a  subsequent  decree.  The  account  of  debts 
will  be  insisted  on  by  the  Court  before  proceeding  to  dis- 
tribute a  residue,  even  though  the  parties  to  the  suit  may 
be  willing  to  waive  it.  For  it  is  essential  that  it  should 
be  ascertained  whether  creditors  exist,  before  the  fund  in 
which  they  have  a  claim  is  disposed  of  by  the  Court.  (<?) 
A  legacy,  however,  may  be  paid  on  an  admission  of  assets, 
although  the  accounts  of  the  estate  have  not  been  taken; 
for  the  decree  is  personal  against  the  executor,  and  the 
creditors,  if  there  are  any,  are  left  untouched.^ 

If  a  debt  is  secured  by  mortgage,  the  mortgagee  may, 
nevertheless,  claim  payment  out  of  the  general  assets,  re- 
taining his  mortgage  to  make  good  a  deficiency;^  or  he 

(e)  Say  v.  Creed,  3  Hare  455  ;  Penny  v.  Watts,  2  Ph.  149. 

*  See  note,  p.  258,  supra. 

*  The  personal  estate  of  a  decedent  is  the  "  natural"  fund  for  the  pay- 
ment of  debts  and  legacies,  and,  as  a  general  rule,  is  first  to  be  exhausted, 
even  to  the  payment  of  debts  with  which  the  real  estate  is  charged  by 
mortgage,  the  mortgage  being  considered  but  a  collateral  security  for  the 
personal  obligation.  See  Gould  v.  W^inthrop,  5  R.  I.  319  ;  Bradford  v. 
Forbes,  9  Allen  365  ;  Plimpton  v.  Fuller,  11  Allen  (Mass.)  139  ;  Thomas 
V.  Thomas,  2  Green  356.  In  England,  by  statute,  the  law  is  now  other- 
wise ;  post,  p.  264,  note.  If,  however,  a  mortgage  debt  was  not  contracted 
by  the  decedent  but  by  another,  as  e.  g.,  a  prior  owner,  the  land  is  con- 
sidered as  the  debtor  ;  and,  even  if  there  has  been  an  express  contract  or 
covenant  by  the  decedent  with  the  mortgagor  to  pay  the  mortgagee,  this 
will  only  make  the  personal  assets  an  auxiliary  fund ;  though,  if  the  con- 
tract were  with  the  mortgagee,  it  would  be  otherwise  :  Cumberland  v. 
Codrington,  3  Johns.  Ch.  257  ;  Case  of  Keyzey,  9  S.  &  R.  73 ;  Garnett  v. 
Macon,  6  Call  308  ;  Dandridge  v.  Minge,  4  Rand.  397  ;  Stevens  v.  Gregg, 
10  Gill  &  J.  143  ;  Kelsey  v.  Western,  2  Comst.  500  ;  Gibson  v.  McCormick, 

,  10  Gill  &  J.  65;  Bank  of  U.  S.  v.  Beverly,  I  How.  U.  S.  134;  Hoye  v. 
Brewer,  3  Gill  &  J.  153  ;  Wyse  v.  Smith,  4  Id.  296 ;  Matter  of  Ilemiup,  3 
Paige  Ch.  305  ;  Stuart  v.  Carson,  1  Dessaus.  500  ;  McDowell  v.  Lawless,  6 
Monr.  141  ;  Ilaleyburton  v.  Kershaw,  3  Dessaus.  105, 115  ;  Dunlapr.  Dun- 
lap,  4  Id.  305  ;  Hoes  v.  Van  Hoesen,  1  Comst.  120  ;  Walkers  Estate,  3  Rawle 
229 ;  Manseirs  Estate,  I  Pars.  Eq.  369  ;  Mason's  Estate,  Id.  129  ;  Mitchell 


OF    TESTAMENTARY    ASSETS.  521 

may  consent  to  have  the  mortgaged  estate  sold,  the  pro- 
duce applied  in  payment  of  his  debt  and  costs,  and  the 
surplus  administered  by  the  Court.  If  he  refuse  to  give 
his  consent,  the  Court  must  either  sell  the  estate  subject 
to  his  charge,  or  must  pay  him  off  and  deal  with  the  re- 
deemed estate  as  assets.  (/)  If  a  debt  is  due  on  judg- 
ment, the  judgment  creditor  will  be  paid  off,  for  the  Court 
will  not  *sell  subject  to  the  judgment,  and  it  can-  r*9f!9-i 
not  otherwise  make  a  title  to  the  estate.  (^) 

In  order  to  ascertain  who  the  creditors  are,  a  direction 
is  given  for  publishing  advertisements  in  those  quarters 
where  they  are  most  likely  to  be  found.  The  same  course 
is  pursued  where  a  distribution  is  to  be  made  among  next 
of  kin,  or  where  a  legacy  is  given  to  a  class  of  persons,  so 
that  it  is  necessary  to  ascertain  of  whom  the  class  consists. 
A  time  is  fixed  by  these  advertisements,  within  which  the 
parties  are  to  make  their  claims.  After  the  expiration  of 
that  time  the  Master  reports  the  claims  which  have  been 
established ;  and  the  Court,  by  the  decree  on  further  di- 

{/)  Mason  r.  Bogg,  2  M.  &  C.  443  ;  Hepworth  v.  Heslop,  3  Hare  485. 
(g)  Xeate  c.  Duke  of  Marllwrough,  3  M.  &  C.  407,  416. 

V.  Mitchell,  3  Md.  Ch.  73 ;  McLenahan  v.  McLenahan,  3  Green  (N.  J.) 
101.  When,  however,  the  purchaser  pays  the  full  price  of  the  land  by  in- 
cluding the  encumbrances  which  he  assumed  to  pay  as  the  entire  consider- 
ation of  the  premises,  he  makes  the  debt  his  own;  and  it  must  be  paid  out 
of  the  personalty  not  specifically  bequeathed  :  Hoff's  Appeal,  12  Harris 
200;  Lennig's  Estate,  52  Penn.  St.  139.  See  note  to  Duke  of  Ancaster  c. 
Mayer,  1  Lead.  Cas.  Eq^,^3d  Am.  ed.  505,  where  this  subject  is  discussed. 

In  New  York,  by  statute,  the  mortgage  debt  has  been  made  to  fall  pri- 
marily on  the  real  estate.  See  Rogers  v.  Rogers,  1  Paige  Ch.  188  ;  Cogs- 
well V.  Cogswell,  2  Ed,  Ch.  231 ;  but  the  statute  does  not  apply  to  the  lien 
for  purchase-money  :  "Wright  v.  Holbrook,  32  N.  Y.  587.  And  see  also, 
Kent  Com.,  vol.  iv.,  p.  422. 

The  general  rule,  also,  is  confined  to  mortgages  and  charges  of  that  na- 
ture, and  does  not  apply  to  the  legatee  of  leasehold  property  liable  for 
dilapidations  during  the  testator's  lifetime,  and  the  former  has  no  right  to 
throw  them  upon  the  general  residuary  legatee,  but  must  discharge  them 
himself :  Hickling  v,  Boyer,  3  Macn.  &  G.  635. 


522  ADAMS's    DOCTRINE    OF    EQUITY. 

rections  authorizes  a  distribution  of  the  fund  among  them, 
and  protects  the  personal  representative  against  any  future 
claim.^  If,  however,  a  claimant  should  subsequently  ap- 
pear, who  was  bond  fide  ignorant  of  the  proceedings,  he 
will  not  be  barred  of  his  right,  but  may  be  let  in  to  par- 
take, so  long  as  the  fund  remains  undistributed,  or  after 
distribution  may  file  a  bill  against  the  other  distributees 
and  compel  them  to  refund  his  share,  (/i)  If  the  legatees 
are  named  in  the  w^ill,  no  advertisement  is  requisite.  But 
if  any  of  them  neglects  to  claim,  an  adequate  portion  of 
the  assets  will  be  set  apart  to  pay  them.(/) 

The  order  in  w^iich  the  assets  will  be  successively  ap- 
plied is  the  only  question  which  remains  for  notice. 

The  prima  facie  order  of  application  is  as  follows  :  1. 
Personal  estate  not  specifically  bequeathed ;  2.  Heal  es- 
tate devised  for  payment  of  debts ;  3.  Real  estate  de- 
scended; (A")  4.  Personal  and  real  estate  specifically 
bequeathed  or  devised,  subject  to  a  charge  of  debts  by 
will ;(/)  5.  Personal  and  real  estate  subject  to  a  charge  of 
r*26ST  ^^^^^  ^y  ^mortgage,  to  the  extent  of  such  mort- 
gage; 6.  Personal  and  real  estate  specifically 
given,  and  not  charged  with  debts.  If  the  personalty  and 
the  corpus  of  the  real  estate  are  inadequate,  the  heir  or 
devisee  may  be  charged  with  bygone  rents.  (««)^ 

[h)  David  v.  Frowd,  1  M.  &  K.  200 ;  Gillespie  v.  Alexander,  3  Russ.  130  ; 
[see  Davies  v.  Nicolson,  2  De  G.  &  J.  G93  ;]  Sawyer  v.  Birchmore,  2  M,  & 
C.  611 ;  Brown  v.  Lake,  1  De  G.  &  S.  144. 

(i)  Seton  on  Decrees  65.  {k)  Biederman  v.  Seymour,  3  Beav.  368. 

{I)  Ilarmood  v.  Oglander,  8  Ves.  106,  125. 

{m)  Curtis  r.  Curtis,  2  B.  C.  C.  620,  628,  633;  Seton  on  Decrees  86; 
Clarendon  v.  Barham,  1  N.  C.  C.  668,  704. 


^  Where  the  fund  is  small,  a  reference  back  to  the  Master,  when  the  cause 
comes  on  for  farther  directions,  in  order  to  apportion  it  among  the  cred- 
itors, may  be  dispensed  with,  and  the  apportionment  made  on  aflSdavit: 
Bear  v.  Smith,  5  De  G.  &  Sm.  92. 

'  Though  the  cases  in  this  country,  on  this  branch  of  the  subject  of  mar- 


OF    TESTAMENTARY    ASSETS.  523 

In  order  that  this  arrangement  may  be  clearly  under- 
stood, it  is  requisite  that  certain  points  should  be  more 
fully  explained. 


shalling,  are  not  by  any  means  reducible  to  one  harmonious  system,  still 
t  may  be  more  convenient  to  group  them  together,  so  as  to  show  liow  far 
hey  follow  or  depart  from  the  order  established  in  England  and  stated  in 
the  text. 

(1.)  There  is,  in  general,  no  doubt  that  the  general  personal  estate,  as  it 
is  the  primary  fund  for  the  payment  of  debts,  so  must  first  bear  their  bur- 
den, unless  expressly  exonerated  :  Hays  v.  Jackson,  6  Mass.  149  ;  Hoover 
V.  Hoover,  5  Penn.  St.  351  ;  Livingstone  v.  Newkirk,  3  Johns.  Ch.  312 ;  Kel- 
sey  V.  Western,  2  Comst.  500  ;  Miller  v.  Harwell,  3  Murph.  195  ;  McLoud 
V.  Roberts,  4  Hen.  &  Munf.  443;  Chase  v.  Lockerman,  11  Gill  &  J.  186; 
Cornish  v.  Wilson,  6  Gill  301 ;  Elliott  v.  Carter,  9  Gratt.  549  ;  Hull  v.  Hull, 
3  Rich.  Eq.  65  ;  Breden  v.  Gilliland,  67  Penn.  St.  34 ;  Knight  v.  Knight,  6 
Jones  Eq.  (N.  C.)  134;  Clarke  v.  Henshaw,  30  Ind.  144;  Newcomer  v. 
Wallace,  Id.  216.  The  only  departure  from  this  rule  is  in  South  Carolina, 
where  it  is  held  that  where  any  property,  real  or  personal,  is  specifically 
set  apart  by  the  will  for  the  payment  of  debts,  it  must  be  first  applied : 
Dunlap  V.  Dunlap,  4  Dessaus.  305  ;  Pinckney  v.  Pinckney,  2  Rich.  Eq.  235. 
Pecuniary  legacie.'s  are  placed  on  the  same  footing,  with  or  else  next  in 
order  to  specific  legacies,  and  though  they  cannot  be  actually  set  apart  as 
can  the  latter,  yet  if  the  personalty  be  exhausted  before  they  are  satisfied, 
they  will  be  entitled  to  exoneration  out  of  the  other  assets :  Hoover  v. 
Hoover,  5  Penn.  St.  351 ;  Post  v.  Mackall,  3  Bland  486 ;  Robards  v.  Wor- 
tham,  2  Dev,  Eq.  173 ;  Brown  v.  James,  3  Strob.  Eq.  24 ;  Wilcox  v.  Wil- 
cox, 13  Allen  252.  In  Hays  v.  Jackson,  6  Mass.  149,  however,  they  appear 
to  have  been  held  to  follow  the  fate  of  the  general  personal  estate  in  every 
respect.  On  the  other  hand,  a  general  or  residuary  bequest  of  personalty, 
is  not  equivalent  to  a  specific  legacy,  so  as  to  be  preferred  to  descended 
lands  :  Walker's  Est.,  3  Rawle  229  ;  Hoes  v.  Van  Iloesen,  1  Barb.  Ch.  380  ; 
but  in  South  Carolina,  ttj^is  distinction  is  not  recognised,  except  as  to  a  re- 
siduary bequest,  subject  to  payment  of  debts  :  Warley  v.  Warley,  1  Bail. 
Eq.  397 ;  and  in  New  York  it  has  been  held  that  a  general  gift  of  person- 
alty exonerated  it,  as  regards  other  legacies,  and  threw  them  on  the  land  : 
Hoes  V.  Van  Iloesen,  1  Barb.  Ch.  380;  1  Comst.  120;  see  Lewis  r.  Dar- 
ling, 16  How.  U.  S.  1.  It  appears  also  that  in  the  last  state,  under  the 
Revised  Statutes,  the  whole  personal  estate  is  to  be  applied  before  lands 
descended  :  Skidmore  v.  Romaine,  2  Bradf.  Surr.  132;  see  Stuart  v.  Kis- 
sam,  11  Barb.  s.  c.  271. 

(2)  Real  estate  devised  for  the  payment  of  debts:  Robards  v.  Wortham, 


524  ADAMS's    DOCTRINE    OF    EQUITY. 

1.  It  has  been  stated  that  the  fund  first  liable  is  the 
personal  estate  not  specifically  bequeathed.     The  propu- 

■  ^  i 

2  Dev.  Eq.  173 ;  Hoover  v.  Hoover,  5  Penn.  St.  351  ;  Hays  v.  Jackson,  6 
Mass.  149. 

(3)  Real  estate  descended:  Id.;  Warley  v.  Warley,  1  Bail.  Eq.  397; 
Brooks  t\  Dent,  1  Md.  Ch.  523 ;  Elliott  v.  Carter,  9  Gratt.  549.  After- 
acquired  land  is  also  comprehended  in  this  class :  Livingston  i\  Newkirk, 

3  Johns.  Ch.  312;  Comm.  v.  Shelby,  13  S.  &  R.  348.  So  of  land  devised 
to  the  heir,  where,  according  to  construction  of  law,  he  is  in  by  descent: 
Ellis  V.  Paige,  7  Cush.  161.  From  some  of  the  decisions  it  would  appear 
that  lands  descended  would  not  be  marshalled  in  favor  of  legacies,  as  regards 
simple  contract  debts,  though  they  are  an  implied  charge  upon  land  in  this 
country:  Robards  v.  Wortham,  2  Dev.  Eq.  173  ;  Chase  v.  Lockerman,  11 
Gill  &  John.  186 ;  though  a  doubt  seems  to  be  cast  on  this  case,  in  this 
respect,  by  the  language  of  the  Court  in  Alexander  v.  Worthington,  5  Md. 
471.     See  Mitchell  v.  Mitchell,  31  Md.  254.     And  see  Alston  v.  Munford, 

1  Brock.  266.  But  under  the  recent  English  statute,  which  assimilates 
the  law  in  respect  to  the  liability  of  lands  for  debts  to  that  in  the  United 
States  generally,  the  opposite  doctrine  is  now  established :  Tombs  v.  Roch, 

2  Coll.  490 ;  Fleming  v.  Buchanan,  3  De  G.,  M.  &  G.  976 ;  Patterson  v. 
Scott,  1  De  G.,  M.  &  G.  531.  And  it  would  appear  to  be  that  which  is 
followed  in  Pennsylvania.  It  is  also  supported  by  Judge  Hare  in  his  notes 
to  Aldrich  v.  Cooper,  2  Lead.  Cas.  Eq.  56  (3d  Am.  ed.),  and  is  clearly  the 
more  reasonable. 

(4)  Real  and  personal  properly  specifically  devised  or  bequeathed,  but 
charged  with  the  payment  of  debts:  Hoover  v.  Hoover,  5  Penn.  St.  351  ; 
Robards  v.  "Wortham,  ut  supr. ;  Elliott  v.  Carter,  9  Gratt.  549  ;  Mitchell  v. 
Mitchell,  3  Md.  Ch.  73  ;  Kirkpatrick  v.  Rogers,  7  Ired.  Eq.  44.  But  it  is 
to  be  remembered,  that  such  a  charge  on  real  estate,  unless  an  intention 
otherwise  clearly  appears,  will  not  exonerate  the  personalty  :  Patterson  v. 
Scott,  2  De  G.,  M.  &  G.  531 ;  Collis  v.  Robins,  1  De  G.  &  S.  131 ;  Kirk- 
patrick t\  Rogers,  7  Ired.  Eq.  44;  Buckley  v.  Buckley,  11  Barb.  S.  C.  77; 
Mitchell  r.  Mitchell,  3  Md.  Ch.  73 ;  McCampbell  v.  McCampbell,  5  Litt. 
98 ;  Leavitt  v.  Wooster,  14  N.  H.  550 ;  Hasenclever  v.  Tucker,  2  Binn. 
525 ;  though  disappointed  legatees  will  be  entitled  to  stand  in  the  place  of 
the  creditors  as  against  the  land  charged :  Paterson  v.  Scott,  1  De  G.,  M. 
&  G.  531 ;  Lockwood  v.  Stockholm,  11  Paige  87  ;  Cryder's  App.,  11  Penn. 
St.  72. 

Where  the  realty  and  personalty  are  blended  together  in  one  disposition, 
and  made  subject  expressly  to  a  joint  charge  of  debts  or  legacies,  or  there 
is  a  power  of  sale  over  realty,  and  the  proceeds,  together  with  the  per- 
eonalty,  are  constituted  a  joint  fund  for  that  purpose,  both  contribute 


OF    TESTAMENTARY    ASSETS.  525 

sition  would  perhaps  be  more  accurately  worded  by  con- 
fining it  to  the  general  residue  after  deduction  of  all  par- 


ratably:  Elliott  v.  Carter,  9  Gratt.  541  ;  Cradock  v.  Owens,  2  Sm.  &  Giff. 
241  ;  Robinson  v.  Governors,  &c.,  10  Hare  29; .Adams  v.  Brackett,  5  Met- 
calf,  282 ;  see  McCampbell  v.  McCampbell,  5  Litt.  99 ;  Ford  v.  Gaithur,  2 
Rich.  Eq.  270 ;  Cox  v.  Cork'endall,  2  Beas.  138  5  Brant's  Will,  40  Mo.  2G6; 
but  contra,  Hoje  t".  Brewer,  3  Gill  &  John.  153.  In  Boughton  v.  Boughton, 
1  H.  Lds.  Cas.  406,  overruling  s.  c,  1  Coll.  26,  however,  where  a  testator 
gave  real  and  personal  estates  to  his  executors  in  trust  to  receive  the  rents, 
issues,  profits  and  dividends  thereof,  to  retain  thereout  yearly  £10  for  their 
trouble,  and  then  to  pay  certain  legacies  and  annuities,  it  was  held  that 
there  was  to  be  no  apportionment,  and  that  the  personal  estate  was  the 
primary  fund.  This  decision  did  not  meet  with  the  approbation  of  Sir 
Edward  Sugden  (Property,  H.  L.  436),  but  it  was  followed  by  Lord  Cran- 
worth  in  Tidd  v.  Lister,  3  De  G.,  M.  &  6.  857,  a  very  similar  case.  In  Rob- 
inson f.  The  Governors,  ut  sup.,  however,  Boughton  v.  Boughton  was  said 
not  to  have  Ijeen  intended  to  interfere  with  the  general  rule  just  stated  as 
to  cases  where  the  realty  and  personalty  are  thrown  into  one  mass,  but 
that  the  decision  proceeded  on  the  ground  that  the  construction  of  the  will 
in  the  particular  case  showed  no  intention  to  create  a  common  mass.  On 
the  other  hand,  in  Lewis  v.  Darling,  16  How.  U.  S.  10,  it  was  held,  in 
effect,  that  where  legacies  axe  given,  and  no  fund  is  expressly  provided 
for  their  payment,  but  a  general  residuary  disposition  of  realty  and  per- 
sonalty is  made  to  the  same  person,  it  is  unnecessary,  on  a  bill  to  charge 
the  real  estate,  to  show  that  the  personalty  is  exhausted ;  and  the  language 
of  the  Court  goes  to  the  length  of  authorizing  a  resort  to  the  realty,  in  such 
case,  in  the  first  instance.  This  would  seem  to  be  against  the  current  of 
authorities  in  England  and  this  country,  and  is  hardly  warranted  by  those 
cited  in  the  opinion,  which  only  show  that,  where  legacies  are  not  ex- 
pressly provided  for,  a  residuary  disposition  of  realty  and  personalty  makes 
them  a  charge  on  land,  about  which  there  can  be  no  doubt.  But,  before 
Lewis  I".  Darling,  it  seemed  equally  clear  that  such  a  construction  did  not 
the  less  make  the  persoiialty  the  primary  fund :  Hasenclever  v.  Tucker,  2 
Binn.  525;  Buckley  r.  Buckley.  11  Barb.  S.  C.  43;  Leavitt  c.Wooster,  14 
N.  H.  550.     See  Clery's  Appeal,  35  Penn.  St.  54. 

The  general  rule  that  a  residuary  disposition  of  realty  and  personalty 
"will  render  legacies  otherwise  unprovided  for  a  charge  upon  the  realty,  is 
thoroughly  established  :  see  Greville  v.  Browne,  7  H.  L.  Cas.  697  ;  Galla- 
gher's Appeal,  48  Penn.  St.  122 ;  Shulters  v.  Johnson,  38  Barb.  80.  And 
see  the  remarks,  in  this  last  case,  on  Lewis  r.  Darling  (supra).  An  excep- 
tion to  this  rule  is  said  to  obtain  where  there  are  previous  specific  devises 


526  ADAMS'S    DOCTRINE    OF    EQUITY. 

ticular  legacies.     For  although  pecuniary  legacies  cannot 
be  conveniently  set  apart  in  the  outset,  and  the  decree, 


of  portions  of  the  real  estate:  see  Lupton  v.  Lupton,  2  Johns.  Ch.  614  ; 
Shulters  v.  Johnson,  ut  supra;  Robinson  v.  Mclvor, 03  N.  C.  645. 

(5.)  The  right  of  a  specific  legatee  disappointed  by  the  recourse  of  a 
mortgagee  to  the  personal  assets,  to  be  subrogated  to  his  remedy  against 
the  land,  as  against  a  devisee,  was  recognised  in  Mollan  v.  Griffith,  3 
Paige  402.  Where  the  mortgage  was  not  originally  created  by  the  tes- 
tator, there  could  be  no  doubt  of  this  right.  See  note,  ante,  p.  261.  Where 
several  estates  are  devised  subject  to  debts,  and  the  testator  subsequently 
mortgages  one,  the  devisee  of  the  mortgaged  estate  is  entitled  to  contribu- 
tion from  the  others  :  Middleton  v.  Middleton,  15  Beav.  450.  But  in  Gib- 
son V.  McCormick,  10  Gill  &  J.  65,  vrhere  there  was  no  express  charge  of 
debts,  the  devisee  of  the  mortgaged  estate  in  such  case,  was  held  not  so  en- 
titled :  Accord  Mason's  Estate,  1  Pars.  Eq.  129 ;  s.  c.  4  Penn.  St.  497. 

(6.)  The  English  rule  that  devisees  and  specific  legatees  are  to  contribute 
ratably  after  the  exhaustion  of  the  previous  classes,  was  followed  in  Chase 
V.  Lockerman,  11  Gill  &  J.  185  ;  Teas's  App.,  23  Penn.  St.  223  ;  Armstrong's 
Appeal,  63  Id.  312;  see  Alexander  v.  Worthington,  5  Md.  493;  and 
Skidmore  v.  Romaine,  2  Bradf.  Surr.  132 ;  though  it  was  confined  in  Chase 
V.  Lockerman,  with  not  much  consistency,  to  cases  where  the  assets  prior 
in  order  had  been  exhausted  by  specialty  creditors.  This  distinction  seems 
to  be  doubted  in  Alexander  v.  Worthington,  ut  supr.,  and  in  England,  now 
that  simple  contract  creditors  have  a  remedy  against  the  land,  no  longer 
exists.  See  above  (3).  But  it  has  been  held  in  several  cases  in  the  United 
States,  that  the  specific  legacies  were  to  abate  without  contribution  from 
devises :  Livingston  v.  Livingston,  3  Johns.  Ch.  148  ;  Miller  v.  Harwell,  3 
Murph.  194  ;  Warley  v.  Warley.  1  Bail.  Eq.  397  ;  Rogers  v.  Rogers,  1  Paige 
183  ;  Hull  V.  Hull,  3  Rich.  Eq.  65  ;  Elliott  v.  Carter,  9  Gratt.  549  ;  Hoover 
».  Hoover,  5  Penn.  St.  351 ;  but  co7itra  Teas's  App.,  23  Id.  223.  In 
some  of  these  cases,  however,  the  English  rule  was  plainly  mistaken  ;  and 
there  can  be  no  possible  reason,  upon  principle,  for  making  a  distinction 
between  specific  legatees  and  devisees.  Where  a  legacy  is  charged  on  land, 
the  legatee  is  entitled  to  contribution  from  the  other  devisees:  Loomis's 
Estate,  10  Penn.  St.  387  ;  Cryder's  App.,  11  Id.  72;  Teas's  App.,  23  Id. 
229.  In  New  York,  under  the  Revised  Statutes,  the  personal  estate  is  to  be 
applied  before  real  estate  descended  and  devised,  and  therefore,  legatees 
are  not  entitled  to  contribution :  Skidmore  v.  Romaine,  2  Bradf.  Surr. 
132. 

Where,  therefore,  the  English  rule  is  not  followed,  the  order  is,  after 
real  estate  charged  with  debts,  the  pecuniary  legacies  ratably,  specific 


OF    TESTAMENTARY    ASSETS.  527 

therefore,  exempts  the  specific  legacies  alone,  yet  if  the 
effect  of  discharging  the  debts  is  to  exhaust  the  person- 
alty, the  pecuniary  legacies  will  be  made  good  out  of  the 
other  assets. 

2.  The  primary  liability  of  the  personal  estate  may  be 
transferred  to  any  portion  of  it  specified  by  the  testator, 
as  between  the  several  objects  of  his  bounty,  though  not 
as  against  the  creditors'  right  over  the  whole.  Or  it  may 
be,  to  the  same  extent,  transferred 'from  the  personal  to 
the  real  estate,  if  the  intention  to  exonerate  the  personal 
estate  be  expressed  in  the  will,  or  be  manifestly  implied 
therein.  But  the  presumption  is  against  the  intention  to 
exonerate,  and  in  favor  of  considering  the  real  estate  as 
an  auxiliary  fund.(7?) 

3.  A  doubt  has  arisen  whether  assets  of  the  third  class 
are  confined  to  lands  descended  to  the  heir,  or  whether 
the  late  act,  declaring  that  the  lands  of  which  a  debtor 
shall  die  seised,  shall  be  assets  for  payment  of  his  debts, 
has  the  effect  of  including  lands  escheated  to  the  lord ; 
and  a  further  doubt  whether,  if  the  escheated  lands  are 
liable,  *their  liability  is  prior  or  subsequent  to  r^oaAi 
that  of  lands  specifically  devised.     The  first  of 

these  points  has  been  determined  against  the  lord ;  the 
second  appears  to  be  undecided,  (ww) 

(n)  2  Jarm.  on  Wills  564-600;  Collis  v.  Robins,  1  De  G.  &  S.  131. 
{nn)  3  &  4  Wm.  4,  c.  10^  ;  Evans  r.  Brown,  5  Beav.  114  ;  11  Law  J.  349. 

legacies  ratably,  and  lastly,  devises  :  Hoover  r.  Hoover,  5  Penn.  St.  351  ; 
Elliott  V.  Carter,  9  Gratt.  549. 

(7.)  Last  in  order,  is  real  estate,  over  which  the  testator  has  had  a 
general  power  of  appointment,  which  he  has  exercised,  and  thus  made  as- 
sets for  creditors  :  Fleming  v.  Buchanan,  22  L.  J.  Ch.  886  ;  3  De  G.,  M.  & 
G.  976.     See  ante,  99,  note. 

See,  on  this  subject  generally,  notes  to  Duke  of  Ancaster  v.  Mayer,  1 
Lead.  Cas.  Eq.  447  ;  and  to  Aldrich  r.  Cooper,  2  Id.  56,  3d  Am.  ed. 


528  ADAMS's    POCTRINE     OF    EQUITY. 

4.  The  liability  of  assets  of  the  fifth  class,  viz.,  mort- 
gaged property,  has  been  the  subject  of  much  discussion. 
But  the  rule,  as  here  stated,  appears  to  be  consistent  with 
all  the  decisions,  and  to  be  founded  on  a  correct  principle; 
viz.,  that  mortgaged  estates,  whether  devised  or  descended 
shall  be  liable  for  payment  of  the  mortgage  debts,  as  as- 
sets which  the  testator  has  expressly  charged,  but  that 
their  liability  shall  be  subordinate  to  that  of  assets 
charged  by  will ;  because  the  fact  of  such  a  charge  being 
made  by  the  testator  denotes  his  intention  to  exonerate 
the  estate.^  They  are  accordingly  liable  in  the  hands  of 
a  devisee,  as  a  fund  for  payment  of  the  particular  debt, 
immediately  after  property  charged  with  debts  and  speci- 
fically given  subject  to  the  charge.  Nor  will  the  order  of 
their  liability  be  altered  although  the  devise  be  in  terms 
"subject  to  the  mortgage;"  for  these  words  mean  no  more 
than  a  gift  of  the  estate  would  imply.  *  On  the  other 
hand,  the  liability  is  prior  to  that  of  property  given  with- 
out a  charge,  including  general  pecuniary  legacies,  but  ex- 
clusive of  a  mere  residuary  gift;  because  a  residuary  gift 
denotes  no  intention  of  bounty,  except  as  subject  to  all 
legal  charges.  If  a  mortgaged  estate  descend  to  the  heir, 
it  will  be  liable  as  assets  by  descent  after  land  devised 
for  payment  of  debts,  (o) 

In  order,  however,  to  charge  any  other  assets  in  prior- 
ity to  the  mortgaged  estate,  it  is  essential  that  the  mort- 

(o)  Halliwell  v.  Tanner,  1  R.  &  N.  633 ;  Wythe  v.  Henniker,  2  M.  &  K. 
935 ;  Johnson  ».  Child,  4  Hare  87  ;  Lockhart  v.  Hardy,  9  Beav.  349. 


'  But  now  by  Stat.  17  &  18  Vict.  ch.  118,  a  mortgage  debt  is  primarily 
a  charge  upon  the  mortgage  estate.  There  has  been  some  conflict  of 
authority  upon  the  construction  of  this  act.  See  Woolstencroft  v.  Woolsten- 
croft,  2  De  G.,  F.  &  J.  347  ;  Moore  v.  Moore,  1  De  G.,  J.  &  S.  602 ;  Max- 
well V.  Hyslop,  L.  R.  4  Eq.  407.  See,  also,  Hill  on  Trustees  357,  note 
(4th  Am.  ed.). 


OF    TESTAMENTARY    ASSETS.  529 

gage  debt  be  originally  a  personal  one,  and  that  it  be  so 
in  reference  to  the  testator  himself,  so  that  the  land  is 
merely  liable  as  a  collateral  security.  If  the  land  were 
originally  the  primary  fund,  e.  g.,  if  a  jointure  or  portion 
be  charged  on  land,  with  a  collateral  covenant  to  make  it 
good;  or  if  it  *has  become  the  primary  fund  in  p^^^--, 
reference  to  the  testator,  e.  g.,  if  he  acquired  it  ^  /^  J 
subject  to  the  charge,  and  has  not  assumed  the  charge  as 
his  personal  debt,  the  devisee  or  heir  is  clearly  liable,  (j!?)^ 

The  doctrine  respecting  mortgaged  estates  applies  also 
to  legacies  of  chattels  pledged  by  the  testator,  or  which 
at  the  time  of  his  death  were  subject  to  a  charge ;  and 
has  been  held  to  include  the  future  calls  on  railway  shares, 
where  the  testator  was  an  original  subscriber  to  the 
undertaking.  (§') 

5.  In  regard  to  assets  of  the  fourth  and  sixth  classes, 
where  both  personal  and  real  estate  are  included,  a  ques- 
tion has  arisen,  whether  the  personal  and  real  estate 
should  contribute  pro  rata,  or  whether  the  personalty  is 
first  liable.  It  has  been  determined  that  in  both  cases 
there  is  a  liability  pro  rata,  and  that,  accordingly,  if  land 
be  devised,  and  the  testator  die  indebted  by  bond,  a  spe- 

[p)  Scott  V.  Beecher,  5  Mad.  96  ;  Oxford  v.  Rodney,  14  Ves.  417  ;  Evelyn 
V.  Evelyn,  2  P.  Wras.  664,  Cox's  note  ;  Ancester  v.  Mayer,  1  B.  C.  C.  453  ; 
Ibbetson  v.  Ibbetson,  12  Sim.  206. 

(2)  Knight  V.  Davis,  3  M.  &  K.  358 ;  Blount  v.  Hipkins,  7  Sim.  51 ;  Jac- 
ques V.  Chambers,  2  Coll.^4i35. 

^  This  distinction  has  been  generally  recognised.  See  Cumberland  v. 
Codrington,  3  Johns.  Ch.  227,  wherein  it  was  held,  that  if  a  person  pur- 
chases an  estate  subject  to  a  mortgage,  and  dies,  his  personal  estate,  as 
against  his  personal  representatives,  shall  not  be  applied  to  exonerate  the 
land,  unless  there  be  strong  and  decided  proof  that  in  taking  the  encum- 
bered estate,  he  meant,  to  make  the  mortgage  debt  a  personal  debt  of  his 
own.  See,  also,  cases,  note  2,  p.  261,  supra. 
34 


630  ADAMS's    DOCTRINE    OF    EQUITY. 

cific  legatee  may  compel  the  devisee  to  contribute,  (r)  A 
question  may  also  arise  under  the  present  law  as  to  the 
possible  right  of  a  specific  legatee  of  personalty  to  be 
exonerated  by  a  general  or  residuary  devise  of  land. 
Under  the  old  law  every  devise  of  real  estate  was  held 
specific,  because  the  testator  only  could  devise  the  lands 
which  he  held  at  the  date  of  his  will.  By  the  recent 
Wills  Act  this  rule  is  altered,  and  a  general  or  residuary 
devise  is  made  to  extend  to  all  the  real  estate  belonging 
to  the  testator  at  the  time  of  his  death.  A  gift  therefore 
of  land  in  general  terms  has  now  ceased  to  be  a  specific 
devise.  (5) 

The  order  of  liability  which  has  been  above  explained, 
r*9fin  *s^y^<^^  t^  ^^y  variations  directed  by  the  will,  is 
that  in  accordance  with  which  the  several  por- 
tions of  the  assets  will  be  successively  applied.  It  may, 
however,  occur,  that  in  the  course  of  administration, 
some  portion  of  the  estate  has  paid  more  than  its  share, 
or  that  claims,  for  which  several  funds  were  liable,  have 
been  so  paid  as  to  exhaust  a  fund,  which  alone  was  ap- 
plicable for  another  claim.  If  irregularities  of  this  kind 
occur,  they  will  be  rectified  by  the  equities  next  consid- 
ered, of  contribution,  of  exoneration,  and  marshalling. 

(r)  Roberts  v.  Walker,  1  R.  &  M.  752  5  Attorney- General  v.  Southgate, 
12  Sim.  77 ;  Boughton  v.  James,  1  Coll.  26 ;  [see,  on  this  case,  note,  ante, 
263]  ;  Tombs  »,  Roch,  2  Coll.  490 :  Gervis  v.  Gervis,  14  Sim.  654. 

(a)  1  Vict.  c.  26  ;  2  Jarm.  on  Wills  547,  n. 


CONTRIBUTION    AND    EXONERATION.  531 


*CH AFTER    V.  [*267] 

OF   CONTRIBUTION,  EXONERATION,    AND   MARSHALLING. 

The  equity  for  adjusting  liabilities  under  a  common 
charge  arises  where  a  charge  or  claim  affecting  several 
persons,  is  or  may  be  enforced  in  the  matter,  not  unjust 
in  the  person  enforcing  it,  but  unjust  or  irregular  with 
regard  to  their  liabilities  inter  se.  And  it  is  exercised 
under  the  three  forms  of  contribution,  exoneration,  and 
marshalling. 

The  equities  of  contribution  and  exoneration  arise  where 
several  persons  are  bound  by  a  common  charge  not 
arising  ex  delicto,  and  their  order  of  liability  has  been  ac- 
cidentally deranged.  If  the  liabilities  be  joint,  he  who 
has  paid  more  than  his  share  is  entitled  to  contribution 
from  the  rest.^     If  some  are  liable  in  priority  to  the  rest, 

^  The  doctrine  of  contribution  is  not  so  much  founded  on  contracts,  as  on 
the  principle  of  equity  and  justice,  that  where  the  interest  is  common,  the 
burden  also  shall  be  common.  Qui  sentit  commodum,  sentire  debut  et  onus  : 
Campbell  r.  Mesier,  4  J(Ans.  Gh.  334 ;  s.  c.  6  Id.  21  ;  Russell  v.  Failer,  1 
Ohio  St.  N.  S.  327  ;  White  v.  Banks,  21  Ala.  705.  See  the  remarks  in 
Yonge  c.  Reynell,  9  Hare  809.  Where,  therefore,  land  subject  to  a  lien 
is  held  by  tenants  in  common,  and  one  is  compelled  to  pay  the  lien  cred- 
itor more  than  his  proportion,  he,  or  his  lien  creditors  may  be  subrogated 
to  the  lien  for  the  excess:  Gearhart  v.  Jordan.  11  Penn.  St.  325.  Though 
if  the  debt  be  a  personal  one  of  the  tenant  in  common  paying,  or  of  his 
own  grantor,  no  right  of  contribution  of  course  exists:  Wager  r.  Chew,  15 
Penn.  St.  323  ;  Cook  v.  Hinsdale,  4  Cush.  134. 


532  ADAMS's    DOCTRINE    OF    EQUITY. 

the  parties  secondarily  liable,  if  compelled  to  discharge 
the  claim,  are  entitled  to  exoneration. 

In  order  that  either  of  these  equities  may  arise,  it  is 
essential  that  the  charge  he  binding,  and  that  it  do  not 
arise  ex  delicto.    - 

The  voluntary  act  of  one  party,  in  expending  money 
for  the  benefit  of  all,  will  not  create  a  right  to  contribu- 
tion. A  co-owner  of  land,  for  instance,  though  bound  to 
pay  a  mortgage  on  the  estate,  is  not  bound  to  make  re- 
pairs or  meliorations,  and  therefore,  cannot  be  compelled 
to  contribute  to  their  costs,  unless  they  have  been  done 
by  his  consent,  or  under  a  special  custom.  But  there  is 
an  exception  in  favor  of  houses  and  mills,  and  of  the  ne- 
r*9fi81  cessary  ^repairs  which  they  require. (a)^  A 
similar  exception  has,  by  many  foreign  jurists, 
been  thought  applicable  to  ships,  on  general  grounds  of 
maritime  policy ;  but  the  rule  of  the  common  law  is  dif- 
ferent; and,  in  the  absence  of  any  express  or  implied 

(a)  Co.  Litt.  200  b. 


^  See  4  Kent  Com.  370 ;  Andersons.  Greble,  1  Ashm,  136.  A  tenant 
in  common  is  not  entitled  to  charge  his  co-tenant  with  a  proportion  of  the 
expenses  incurred  for  the  benefit  of  the  common  property  :  Carver  v.  Miller, 
4  Mass.  559 ;  Cheeseborough  r.  Green,  10  Conn.  318  ;  4  Kent  Com.  370  ; 
Norris  v.  Hill,  1  Mann.  (Mich.)  202  ;  Crest  r.  Jack,  3  Watts  238  ;  Volentine 
V.  Johnson,  1  Hill  Ch.  46  ;  Hancock  v.  Day,  1  McMullan  Eq.  69  ;  Thomp- 
son ».  Bostwick,  Id.  75  ;  Holt  v.  Robertson,  Id.  475  ;  though  see  Payton  v. 
Smith,  2  Dev.  &  Batt.  Eq.  325,  349  ;  and,  e  converso,  where  land  belonging 
to  tenants  in  common  or  joint  tenants  yields  no  profit,  and  one  of  the  owners 
enters  and  renders  the  estate  productive,  the  others  cannot  claim  a  share 
of  the  profits  :  Id.  ;  Nelson  v.  Clay,  7  J.  J.  Marsh.  138.  See,  under  special 
statutes  in  Maine  and  New  Hampshire :  Bellows  v.  Dewy,  9  N.  H.  278  ; 
Buck  V.  Spofford,  31  Maine  34.  Where  co-tenants  make  partition  of  land 
subject  to  a  mortgage,  the  share  of  the  premises  set  off  to  each  is  primarily 
chargeable  with  half  of  the  mortgaged  debt :  Rathbone  v.  Clark,  9  Paige 
648.    And  see  preceding  note. 


CONTRIBUTION    AND    EXONERATION.    '  533 

agreement,  throws  the  costs  of  any  repairs  on  the  party 
directing  them .  (b)  ^ 

If  the  liability  arise  ex  delicto  there  is  no  right  to  con- 

(6)  Story  on  Partnership,  ss.  421-6  ;  Smith's  Merc.  Lawl75. 

^  Hardy  v.  Sproule,  31  Maine  71  ;  Schooner  William  Thomas  v.  Ellis,  4 
Barring.  309  ;  Brooks  v.  Harris,  12  Ala.  555  ;  Turners.  Burrows,  8  Wend. 
144  ;  Reed  v.  Bachelder,  34  Maine  205.  Though  part-owners  are  liable  to 
contribute  for  repairs  and  necessary  expenses  incurred  by  one,  with  the 
consent  of  all,  and  for  the  common  benefit :  Story  Partn.,  s.  419 ;  see  Hop- 
kins r.  Forsyth,  14  Penn.  St.  34.  But  a  part-owner  is  not,  though  ship's 
husband,  authorized  to  borrow  money,  or  to  insure  the  ship,  and  hence  is 
not  entitled  to  contribution  therefor  :  Turner  v.  Burrows,  ut  supr. ;  Patter- 
son V.  Chalmers,  7  B.  Monr.  598  ;  Flanders  on  Shipping,  s.  385.  Whether 
one  part-owner  has  a  lien  upon  the  shares  of  the  rest  for  his  advances,  is 
an  unsettled  question  in  this  country.  Of  course,  no  such  lien  can  be 
claimed  where  no  right  of  contribution  exists  :  McDonald  v.  Black,  20  Ohio 
198.  And  in  England,  it  is  now  held,  on  the  authority  of  the  decision  of 
Lord  Eldon,  in  Ex  parte  Young,  2  Ves.  &  Beames  242,  overruling  Lord 
Hardwicke  in  Doddington  v.  Hallet,  1  Ves.  Sr.  497,  that  no  such  lien  exists 
in  any  case.  Lord  Eldon's  opinion  was  followed  in  Patton  v.  The  Schooner 
Randolph,  1  Gilp.  457  ;  Merrill  v.  Bartless,  6  Pick.  46  ;  and  by  Chancellor 
Kent  in  Nicollr.  Mumford,  4  Johns.  Ch.  522.  The  latter  decision,  however, 
was  overruled  on  appeal,  by  a  majority  of  the  Court  of  Errors  :  Mumford 
V.  Nicoll,  20  Johns.  611  ;  and  the  earlier  doctrine  followed  ;  as  it  was,  also, 
in  Hewitt  v.  Sturdevant,  4  B.  Monr.  453  ;  Pragoff  v.  Heslep,  1  Am.  L.  Reg. 
747  ;  by  Ch.  Dessaussure  in  Seabrook  v.  Rose,  2  Hill  Eq.  553  ;  and  it  was 
approved  in  McDonald  v.  Black,  20  Ohio  198.  In  Missouri,  part-owners 
of  steamboats  have  a  lien  by  statute  :  Langstaff  v.  Rock,  13  Mo.  579.  See 
also,  on  this  subject,  Gallatin  v.  The  Pilot,  2  Wall.  Jr.  592 ;  Knox  v. 
Campbell,  1  Penn.  St.  366  ;  and  Hopkins  v.  Forsyth,  14  Id.  34;  where  it 
seems  to  have  been  held,  that  a  purchaser  of  the  interest  of  a  part-owner, 
at  sheriflTs  gale,  was  not  subject  to  such  a  lien  ;  and  yet,  that  it  could  not 
be  claimed  upon  the  proQAeds. 

There  may  be,  indeed,  a  partnership  in  a  ship,  either  generally,  or  on  a 
particular  adventure,  as  in  any  other  chattel :  Hewitt  v.  Sturdevant,  4  B. 
Monr.  459 ;  Knox  v.  Campbell,  1  Penn.  St.  366 ;  Story  Partn.,  s.  408 ; 
Mumford  v.  Nicoll,  20  Johns.  611.  And  in  such  case,  the  part-owners  will 
be  entitled  to  all  the  equities  and  liens  which  arise  from  that  relationship. 
But,  on  the  other  hand,  they  cannot  claim  contribution  or  subrogation, 
until  the  whole  partnership  affairs  are  settled  :  Story  Partn.,  ss.  219,  419, 
&c.,  260 ;  see  Bailey  v.  Brownfield,  20  Penn.  St.  45. 


534  ADAMS's    DOCTRINE    OF    EQUITY. 

tribution;  for  there  is  no  equity  between  wrongdoers.^ 
But  it  is  otherwise  with  respect  to  mere  breaches  of  trust, 
not  involving  any  actual  fraud.  In  such  cases  each  de- 
faulting trustee  is  severally  liable  to  the  cestui  que  trust 
for  the  whole  loss-;  but  contribution  may  be  enforced  as 
between  the  trustees  themselves;  and  if  any  third  person 
has  knowingly  reaped  the  benefit  of  the  breach  of  trust, 
the  loss  may  be  eventually  cast  on  him.(c) 

The  rights  now  under  consideration  are  acknowledged 
both  at  law  and  in  equity,  and  so  far  as  the  machinery  of 
the  common  law  will  allow,  may  be  enforced  in  an  action. 
But  the  means  of  enforcement  at  law  are  very  limited  ; 
for,  in  addition  to  the  impossibility,  common  to  all  classes 
of  account,  of  obtaining  discovery  on  oath  or  satisfactorily 
investigating  the  items,  there  are  other  special  difficulties, 
originating  in  the  necessity  of  suing  each  party  liable  in 
a  separate  action,  which  renders  it  difficult  to  insure  ver- 
dicts for  the  true  ratable  shares,  and  disables  the  Court, 
where  one  of  several  contributors  proves  insolvent,  from 
distributing  the  consequent  loss  ratably  among  the  rest.(c?)^ 

(c)  Merryweather  v.  Nixan,  8  T.  186 ;  Lingard  v.  Bromley,  1  Ves.  &  B. 
114;  Seddon  v.  Connell,  10  Sim.  79,  86  ;  Attorney-General  v.  Wilson,  Cr. 
&  P.  1 ;  [see  Hill  on  Trustees  (4th  Am.  ed.)  814,  and  notes.] 

(d)  Cowell  V.  Edwards,  2  Bos.  &  P.  268  ;  Deering  v.  Earl  of  Winchelsea, 
Id.  270  5  Browne  v.  Lee,  6  B.  &  C.  689. 

'  Contribution  will  not  be  enforced  in  equity  between  wrongdoers  ;  espe- 
cially when  the  party  who  seeks  it  does  not  stand  in  cequali  jure  with 
the  other  :  Peck  v.  Ellis,  2  Johns.  Ch.  131.  Courts  of  justice  will  not  lend 
their  aid  to  equalize  burdens  in  such  cases,  but  will  leave  the  parties  where 
they  find  them  :  Bartle  v.  Nutt,  4  Peters  184 ;  see,  also.  Miller  v.  Fenton, 
11  Paige  18;  Dupuy  v.  Johnson,  1  Bibb  562;  Rhea  v.  White,  3  Head 
(Tenn.)  121 ;  Anderson  v.  Saylors,  Id.  551.  But  this  rule  is  not  of  uni- 
verpal  application.  It  only  applies  to  cases  where  the  parties,  who  claim 
contribution,  have  engaged  together  in  doing,  knowingly  or  wantonly,  a 
wrong :  Acheson  v.  Miller,  2  Ohio  (N.  S.)  203  ;  Moore  v.  Appleton,  26  Ala. 
633. 

*  The  jurisdiction  of  equity  in  cases  of  contribution  is  not  affected,  be- 


CONTRIBUTION    AND    EXONERATION.  535 

The  two  equities  of  contribution  and  exoneration  are 
both  exemplified  in  the  case  of  suretyship  -}  the  one  by 

cause  a  remedy  now  exists  at  common  law :  Veile  v.  Hoag,  24  Verm.  46  ; 
'  Wayland  v  Tucker,  4  Gratt.  268 ;  Couch  v.  Terry,  12  Ala.  225  ;  Hickman 
V.  McCurdy,  7  J.  J.  Marsh  559. 

*  The  dcctrines  which  are  applied  in  equity  to  the  relation  of  creditor  and 
surety  will  be  found  discussed  with  great  ability  and  clearness  in  the  notes 
to  Rees  v.  Berrington,  2  Lead.  Cas.  Eq.  814.  The  following  is,  for  the  most 
part,  a  summary  of  the  conclusions  drawn  by  the  learned  editor  from  the 
American  cases : 

As  it  is  of  the  essence  of  the  contract  of  the  surety,  that  he  shall  see  to 
the  performance  of  the  obligation  himself,  the  creditor  is  not  bound  in  any 
way  towards  him,  to  diligence  in  the  enforcement  of  his  remedies,  against 
the  principal.  The  neglect  or  omission  to  take  proper  measures,  by  which 
all  opportunity  of  collecting  the  debt  is  lost,  unless,  perhaps,  when  amount- 
ing to  fraud  (Dawson  t".  Lawes,  23  L.  J.  Ch.  434)  will  not  afiFect  the  lia- 
bility of  the  surety.  The  only  exception  to  this  doctrine  is  in  Pennsylvania, 
in  the  case  of  a  guarantee,  which,  in  that  state,  whether  under  seal  or  not, 
imports  on  the  part  of  the  guarantor  merely  an  obligation  to  pay  if  the 
principal  debtor  cannot,  while  that  of  the  surety  arises  if  the  principal  does 
not  pay.  In  such  case,  therefore,  it  is  held  to  be  the  duty  of  the  creditor  to 
pursue  the  principal  at  once  to  insolvency,  or  at  least  that  actual  insolvency 
shall  exist,  before  he  can  turn  round  on  the  guarantor :  Parker  v.  Culvert- 
son,  1  Wall.  Jr.  149,  and  cases  cited  ;  McClurg  v.  Fryer,  15  Penn.  St.  293 ; 
Marberger  v.  Pott,  16  Id.  13  ;  Reigart».  White,  52  Id.  438.  Unless,  how- 
ever the  guarantee  is  special,  as  to  pay  a  note,  "when  due;"  in  which 
case  the  principal  need  not  be  pushed  to  insolvency :  Campbell  v. 
Baker,  46  Penn.  St.  243. 

Apart  from  this  special  case,  it  is  well  established,  therefore,  that  indul- 
gence to  the  principal,  even  by  an  express  promise  to  give  time,  unless  the 
promise  be  upon  consideration,  or  otherwise  legally  binding ;  or  delay  in 
proceeding  against  the  debtor,  whether  before  or  after  suit  commenced,  will 
not  discharge  the  surety,  of  itself,  whatever  may  be  its  eflfects  to  his  injury. 
See  also  Marberger  v.  Jott,  16  Penn.  St.  13 ;  Pittsburgh,  &c.,  R.  R.  v. 
Shaeffer,  59  Id.  350;  Hunter  ».  Clark,  28  Texas  159 ;  Rucker  v.  Robinson, 
38  Mo.  154 ;  Black  River  Bank  v.  Page,  44  N.  Y.  453.  And,  though  both 
in  England,  and  the  United  States  generally,  collaterals  held  by  the  cred- 
itor, are  considered  as  constituting  a  trust  fund  for  the  benefit  of  th  sure- 
ties, yet  contrary  to  the  doctrine  in  the  former  country,  the  creditors  seem 
to  be  held,  here,  to  no  greater  diligence  with  respect  to  them,  than  to  his 
direct  remedies. 

Where,  however,  the  creditor  acts  in  such  a  way  as  directly  to  impair  or 


536  ADAMS's    DOCTRINE    OF    EQUITY. 

the  rights  of  sureties  as  between  themselves;  the  other 
by  their  rights  as  against  the  principal. 


destroy  the  relations  of  the  principal  to  the  surety,  or  the  right  of  the  latter 
to  recourse  or  indemnity,  it  will  operate  as  a  discharge  of  the  surety  to  the 
extent  of  the  injury  actually  suffered  by  him.  Thus,  in  the  case  of  a  bind- 
ing promise  to  give  time  to  the  principal,  for  however  short  a  period,  or  d 
fortiori,  of  his  release :  Paulin  v.  Kaign,  3  Dutch.  503 ;  Pierce  v.  Golds- 
berry,  81  Ind.  52.  See  also  Wakefield  Bank  v.  Truesdall,  55  Barb.  (N.  Y.) 
602;  Preston  v.  Hennig,  6  Bush  (Ky.)  556;  Calvin  v.  Wiggam,  27  Ind. 
489  ;  Adams  v.  Way,  32  Conn.  160.  Of  the  abandonment  or  relinquish- 
ment of  collateral  securities ;  of  the  relinquishment  of  any  lien  obtained 
by  suit  on  the  debtor's  property,  or  of  any  similar  act  on  the  part  of  the 
creditor,  he  loses  thereby  his  right  of  recourse  to  the  surety.  But  this,  as 
has  been  stated,  only  takes  place  when  such  conduct  results  in  actual 
injury  to  the  surety,  and  simply  to  that  extent.  See  also  N.  H.  Savings 
Bank  v.  Colcord,  15  N.  H.  123 ;  Everly  v.  Rice,  20  Penn.  St.  297;  Armis- 
tead  V.  Ward,  2  Patt.  &  H.  504 ;  The  People's  Bank  v.  Pearsons,  30  Verm. 
715  ;  Phares  v.  Barbour,  49  111.  370 ;  Mount  v.  Tappey,  7  Bush  617.  The 
remedy  against  a  surety  may  be  expressly  reserved :  Boaler  v.  Mayor,  19 
C.  B.  N.  S.  76 ;  Union  Bank  v.  Buck,  3  Hurl.  &  Colt.  672 ;  Barkyat  v. 
Ellis,  45  N.  Y.  107.  Where  the  creditor  has  gone  farther,  and  varied  the 
terms  of  the  original  contract  in  any  essential  matter,  the  surety  is  abso- 
lutely discharged,  though  the  alteration  may  be  shown  to  be  actually  for 
his  benefit,  when  he  does  not  assent  to  the  change.  See  Smith  v.  United 
States,  2  Wall.  S.  C.  233.  In  all  cases,  however,  where  he  insists  on  a  dis- 
charge, the  surety  is  bound  to  surrender  to  the  creditor  any  indemnity  or 
collateral  which  he  has  obtained  from  the  principal,  before  he  can  avail 
himself  of  his  right. 

By  consequence  of  the  principles  before  stated,  a  creditor,  as  a  general 
rule,  cannot  be  compelled  in  equity  to  resort  in  the  first  instance  to  the 
principal  or  his  property  before  he  can  enforce  his  remedy  against  the 
surety.  See  Hayes  v.  Ward,  4  Johns.  Ch.  123  ;  Abercrombie  v.  Knox,  3 
Ala.  728;  sed  »ide  West  v.  Belches,  5  Munf.  187;  Wright  v.  Crump,  25 
Ind.  339.  It  would  seem,  however,  that  there  may  be  cases  where  such  a 
bill  would  lie,  though  the  surety  would  probably  be  required  to  indemnify 
the  creditor  against  the  risk,  delay  and  expense :  Whitridge  v.  Durkee,  2 
Md.  Ch.  442;  Hayes  v.  Ward,  ut  supr. ;  Stephenson  v.  Taverner,  9  Gratt. 
398 ;  Thigpen  v.  Price,  Phill.  (N.  C.)  Eq.  146  ;  Wright  v.  Austin,  56  Barb. 
(N.  Y.)  13.  The  surety,  indeed,  is,  without  doubt,  in  this  country,  entitled 
to  the  use  of  the  creditor's  remedies  against  the  principal  and  his  pi-operty, 
and  is  entitled,  therefore,  on  bill  against  the  principal,  to  make  the  creditor 


CONTRIBUTION    AND    EXONERATION.  537 

*The  right  of  contribution  arises  between  sure-    r*9f»Q-i 
ties  where  one  has  been  called  on  to  make  good 

a  party  for  that  purpose.  See  post,  note  ;  Stephenson  v.  Taverner,  ut  supr.; 
note  to  Reese  v.  Berrington,  ut  supr. 

In  some  of  the  states,  nevertheless,  the  same  end  is  obtained  by  what  is 
now  well  settled,  that  although  mere  forbearance,  however  prejudicial,  will 
not  discharge  him,  yet,  if  the  surety  requests  the  creditor  to  proceed 
against  the  principal,  and  the  creditor  refuses  or  delays  to  sue  until  the 
principal  becomes  insolvent,  the  surety  is  discharged :  King  v.  Baldwin, 
17  Johns.  384 ;  Valentine  v.  Farrington,  2  Ed.  Ch.  53 ;  Rutledge  v.  Green- 
wood, 2  Dessaus.  389  ;  Pain  v.  Packard,  13  Johns.  174  ;  Bruce  r.  Edwards, 
1  Stew.  11 ;  see  also  Matter  of  Babcock,  3  Story  393 ;  Spottswood  v.  Dan- 
dridge,  4  Munf.  289 ;  Singer  v.  Troutman,  49  Barb.  (N.  Y.)  182.  So,  in 
Pennsylvania,  if  the  creditor  be  requested  in  pais,  by  the  surety,  to  sue 
the  debtor,  and  neglect  or  refuse  so  to  do,  the  surety  will  be  discharged ; 
provided  such  request  be  positive,  and  accompanied  with  a  declaration 
that,  unless  it  be  complied  with,  the  surety  will  consider  himself  dis- 
charged:  Cope  V.  Smith,  8  S.  &  R.  112;  Greenawalt  t?.  Kreider,  3  Penn. 
St.  264;  and  provided,  also,  the  debt  is  due:  Hellen  v.  Crawford, 
44  Id.  105.  The  request  may  be  made  by  an  agent,  and  to  the  agent 
or  attorney  of  the  creditor.  The  request  is  binding,  without  a  tender 
of  expenses,  or  offer  to  sue  upon  the  obligation,  unless  the  creditor  makes 
objection  on  that  ground  at  the  time  :  Wetzel  v.  Sponsler's  Ex'rs.,  18  Penn. 
St.  462 ;  Conrad  v.  Foy,  68  Id.  381.  Under  the  Mississippi  Code  such 
notice  must  be  in  Avriting  :  Bridges  v.  Winters,  42  Miss.  135. 

In  other  states,  however,  this  rule  has  not  been  followed.  In  several, 
where  not  adopted  by  decision,  it  has  been  embodied  in  the  statute  law. 
See  note  to  Rees  v.  Berrington,  ut  supr. 

Another  consequence  flowing  from  the  relation  of  creditor  and  surety 
may  be  mentioned  here,  which  is  the  right  of  the  former  to  be  subrogated 
to,  and  to  avail  himself  of  all  the  securities  held  by  the  surety :  note  to 
Bering  r.  Earl  of  Winchelsea,  1  Lead.  Cas.  Eq.  87 ;  Kramer  &  Rahm's 
Appeal,  37  Penn.  St.  76  ;  Ilavey  v.  Foley,  4  Benn.  (Mo.)  136 ;  Vail  ». 
Foster,  4  Comst.  312;  Houston  v.  The  Branch  Bank,  25  Ala.  250;  Dozier 
V.  Lewis,  27  Miss.  677 ;  see  the  remarks  in  Yonge  v.  Reynell,  9  Hare  809  5 
Irick  V.  Black,  2  Green  189  ;  Owens  v.  Miller,  29  Md.  144  ;  Van  Orden  v. 
Durham,  35  Cal.  136.  The  right  is  one  recognised  by  Courts  of  law:  Boyd 
r.  McDonough,  39  How.  (N.  Y.)  389.  This  right,  however,  is  entirely 
subordinate  to  that  of  the  surety,  and,  when  he  is  in  fact  not  liable  on  the 
original  contract,  cannot  be  enforced :  Bibb  v.  Martin,  14  Sm.  &  M.  88 ; 
Bush  V.  Stamps,  26  Miss.  463. 

A  surety  cannot  compel  a  creditor  to  resort  to  a  collateral  security  in  the 


538  ADAMS's    DOCTRINE     OF    EQUITY. 

the  principal's  default,  and  has  paid  more  than  his  share 
of  the  entire  liability,  (e)^     K  all  the  sureties  have  joined 

(ej  Smith's  Merc.  Law  427-8  -,  Dalies  v.  Humphreys,  6  M.  &  W.  153, 169. 

first  instance,  unless  such  security  be  as  available  in  all  respects  as  a  pro- 
ceeding against  the  surety :  Gary  v.  Cannon,  3  Ired.  Ch.  64 ;  Kirkman  v. 
Bank  of  America,  2  Cold.  (Tenn.)  397. 

^  First.  It  is  a  general  principle  that  a  surety  who  has  paid  the  debt  may 
compel  his  co-surety  to  make  contribution :  Waters  v.  Kiley,  2  Har.  &  G. 
305 ;  Pinkston  v.  Taliaferro,  9  Ala.  547  ;  Mitchell  v.  Sproul,  5  J.  J.  Marsh. 
264 ;  Robertson  v.  Maxcey,  6  Dana  103  ;  Yates  v.  Donaldson,  5  Md.  389. 
See,  on  this  subject,  notes  to  Dering  v.  Earl  Winchelsea,  1  Lead.  Cas.  Eq. 
78.  But  he  can  only  call  for  contribution  when  he  has  paid  more  than  his 
proportion  of  the  debt,  and  then  for  no  more  than  the  excess :  Lytle  w. 
Pope,  11  B.  Monr.  309;  Rutherford  v.  Branch  Bank,  14  Ala.  92.  And 
he  must  show  also  that  the  principal  is  insolvent,  or  at  least  that  he  has 
used  due  diligence  against  him.  Where  one  of  the  sureties  is  insolvent,  his 
share  is  proportioned  among  the  rest,  in  favor  of  the  surety  asking  con- 
tribution :  note  to  Dering  v.  Winchelsea,  ut  supr. ;  Young  v.  Lyons,  8  Gill 
166.  A  judgment  against  a  surety,  paid  by  a  co-surety,  stands  against  the 
estate  of  the  former  for  the  amount  claimed  for  contribution :  Rutherford 
V.  Branch  Bank,  14  Ala.  92.  And  it  has  been  held  that  where,  on  a  judg- 
ment against  co-sureties,  the  land  of  one  has  been  sold,  the  judgment  cred- 
itors of  the  latter  arc  entitled  to  be  subrogated  to  the  judgment,  by  way  of 
a  claim  for  contribution,  against  the  land  of  the  other:  Moore  v.  Bray,  10 
Penn.  St.  519.  But  the  general  doctrine  is  founded  on  the  maxim,  "  Equal- 
ity is  equity,"  and  hence  where  one  of  two  sureties,  without  the  know- 
ledge of  his  co-surety,  and  by  previous  arrangement  with  the  principal 
debtor,  received  a  share  of  the  sum  borrowed,  he  was  held  not  entitled  to 
contribution  from  such  co-surety,  when  obliged  to  pay  the  debts  :  McPher- 
son  V.  Talbot,  10  Gill  &  J.  499  ;  see,  also.  Kerns  v.  Chambers,  3  Ired.  Ch. 
576.  And  the  rule  is,  that  where  one  of  several  co-sureties  is  indemnified 
or  receives  a  fund  to  be  applied  towards  the  debt,  he  will  be  considered  as 
holding  for  the  benefit  of  all  the  sureties  :  Agnew  v.  Bell,  4  Watts  31 ; 
Moore  v.  Moore,  4  Hawks.  358  ;  Gregory  v.  Murrell,  2  Ired.  Eq.  233 ; 
Hinsdale  v.  Murray,  6  Verm.  136  ;  Miller  v.  Sawyer,  30  Id.  412  ;  Ramsey 
V.  Lewis,  30  Barb.  403  ;  Butler  v.  Birkey,  13  Ohio  N.  S.  514  ;  McMahon  v. 
Fawcett,  2  Rand.  514;  Bobbitt  v.  Flowers,  1  Swan  (Tenn.)  511 ;  Aldrich's 
Admrs.  v.  Hapgood,  39  Verm.  617  ;  Clapp  v.  Rice,  15  Gray  (Mass.)  557  ; 
Brown  v.  Ray,  18  N.  H.  102 ;  but  so  far  as  he  has  a  security  foE.  indi- 
vidual claims  he  is  entitled  to  hold  it :  McCunn  v.  Belt,  45  Mo.  194.  One 
surety  has,  however,  an  unquestionable  right  to  stipulate  for  a  separate 
indemnity,  and  in  the  absence  of  fraud  or  deceit  to  apply  it  in  extinguish- 


CONTRIBUTION    AND    EXONERATION.  539 

in  a  single  bond,  the  generfil  rule,  in  the  absence  of  any 
express  or  implied  contract,  is  that  of  equality;  if  their 

ment  of  his  portion  of  the  liability  :  Thompson  v.  Adams,  1  Freem.  Ch. 
225 ;  Moore  v.  Moore,  ubi  supra ;  see,  also,  Moore  v.  Isley,  2  Dev.  &  Bat. 
Ch.  372 ;  Himes  v.  Keller,  3  W.  &  S.  401 ;  Bowditch  v.  Green,  3  Mete. 
360 ;  Com.  Bank  v.  Western  Bank.,  11  Ohio  444. 

But  a  surety,  who  is  indemnified  by  the  principal,  cannot  recover  for 
contribution,  except  so  far  as  that  indemnity  does  not  extend :  John  v. 
Jones,  16  Ala.  455 ;  Morrison  v.  Taylor,  21  Id.  779.  Where  a  surety  ob- 
tains indemnity  for  a  consideration  paid  by  him,  a  co-surety  cannot  claim 
the  benefit  of  it,  without  paying  his  proportion  of  the  consideration  :  White 
V.  Banks,  21  Ala.  705.  And  so  where  one  surety  buys  in  the  principal's 
land,  on  the  judgment  against  him,  with  his  own  money,  the  others  can- 
not claim  to  participate  in  the  benefit  of  the  purchase  :  Crompton  v.  Yas- 
ser, 19  Ala.  259. 

A  surety  who  has  neglected  to  interpose  a  legal  defence,  as  of  the 
Statute  of  Limitations,  cannot  claim  contribution  from  the  rest:  Fordham 
V.  Wallis,  17  Jurist  228.  And,  on  the  other  hand,  one  is  not  entitled  to' 
charge  the  rest  with  fees  expended  in  defending  himself  in  a  suit  brought 
against  him  as  such  surety :  Comegys  v.  State  Bank,  6  Ind.  357. 

Although  the  surety's  right  of  indemnification  against  his  principal 
was  provable  under  the  Bankrupt  Act  of  1841,  though  before  he  was 
called  upon  to  pay,  and  therefore  discharged  by  the  discharge  of  the  prin- 
cipal :  Fulwood  V.  Bashfield,  14  Penn.  St.  90 ;  yet  it  is  otherwise  with  re- 
gard to  his  right  of  contribution  against  a  co-surety :  Dunn  v.  Sparks,  1 
Cart.   (Ind.)  397. 

One  of  two  sureties  is  entitled  to  take  out  execution  on  a  joint  judgment 
against  them,  to  compel  contribution  by  his  co-surety  :  Cuyler  ».  Ensworth, 
6  Paige  Ch.  32  ;  Croft  v.  Moore,  9  Watts  451 ;  yet  see  Bank  v.  Adger,  2 
HiirCh.  262. 

Second.  Equity  will  distinguish  between  principal  and  surety,  though 
the  nature  of  the  security  be  such  as  to  make  them  all  principals  in  a 
court  of  law :  Davis  v.  Mikell,  1  Freem.  Ch.  548 ;  McDowell  v.  Bank,  1 
Harrington  369. 

Third.  If  one  becomes  surety  merely  at  the  request  of  a  co-surety,  he  is 
not  liable  to  the  latter  for  contribution.  See  Byers  v.  McClanahan,  6  Gill 
&  J.  250 ;  Taylor  v.  Savage,  12  Mass.  98,  102. 

The  result  of  the  cases  on  these  points,  is  thus  stated,  in  substance,  in 
the  notes  to  Dering  v.  Winchelsea,  ut  sup.  Where  several  persons,  or 
sets  of  persons,  enter  into  engagements  of  suretyship,  which  are  the  same 
in  legal  operation  and  effect,  though  at  difierent  times  and  by  difierent  in- 
struments, for  the  same  debt,  and  to  and  for  the  same  persons,  the  right 
of  contribution  exists  among  all ;  and  parol  evidence  is  admissible  to  con- 
tradict the  legal  result.    See,  also,  Norton  t?.  Coons,  2  Selden  (N.  Y.)  33 ; 


540  ADAMS's    DOCTRINE    OF    EQUITY. 

liabilities  have  been  created  hy  distinct  bonds,  the  contri- 
bution is  in  proportion  to  the  respective  penalties.  But 
in  either  case  the  principle  is  the  same  ;  and  provided  the 
transaction  to  which  the  suretyship  applies,  be  single,  the 
mode  in  which  the  parties  are  bound,  whether  by  the  same 
or  by  different  instruments,  is,  with  respect  to  the  right 
of  contribution,  immaterial.  (/)  The  equity  for  contribu- 
tion between  sureties  is  also  applicable  to  underwriters  or 
insurers,  where  the  owner  of  property  has  made  two  or 
more  insurances  on  the  same  risk  and  the  same  interest. 
In  this  case,  the  law  will  not  allow  him  to  receive  a  double 
satisfaction  for  a  loss ;  but  if  he  recover  the  entire  loss 
from  one  set  of  underwriters,  they  may  have  a  ratable 
contribution  from  the  rest.  (^) 

(/)  Deering  v.  Earl  of  Winchelsea,  2  Bos.  &  P.  270 ;  Coope  v.  Twynam, 
T.  &  R.  426 ;  Craythorne  v.  Swinburne,  14  Ves.  160. 
( g)  Newby  v.  Reed,  1  W.  Bl.  416. 

Bell  V.  Jasper,  2  Ired.  Eq.  597.  If,  however,  the  obligations  be  for  dis- 
tinct things,  with  no  relation  to  or  operation  on  each  other,  though  they 
may  be  all  founded  on  the  same  original  indebtedness,  there  is  no  contri- 
bution between  the  sureties.  One  who  becomes  surety  in  the  course  of 
legal  proceedings  against  the  principal  has  no  right  of  contribution  against 
the  original  surety  for  the  debt  itself;  on  the  contrary,  the  latter  is  enti- 
tled to  be  subrogated  to  the  creditor's  right  against  him,  as  in  the  case  of 
bail.  Thus  the  sureties  of  a  sheriff,  having  been  compelled  to  pay  for  a 
default  of  his  deputy,  may  recover  the  amount  paid  from  the  sureties  of 
the  deputy :  Brinson  v.  Thomas,  2  Jones  Eq.  414.  Finally,  one  who  be- 
comes surety  by  a  supplemental  instrument,  on  the  understanding  that  he 
is  to  be  liable  only  in  default  of  the  principal  and  original  sureties,  cannot 
be  called  upon  to  contribute ;  and  on  the  other  hand  may  be  subrogated 
to  the  creditor's  rights  against  the  original  sureties. 

Fourth.  A  surety  who  has  paid  the  whole  debt  must  show  the  insol- 
vency of  the  principal,  to  entitle  him  to  contribution  against  his  co-surety : 
Pearson  v.  Duckham,  3  Litt.  385 ;  Daniel  v.  Ballard,  2  Dana  296  ;  Allen  v. 
Wood,  3  Ired.  Ch.  386 ;  Burrows  v.  McWhann,  1  Dessaus.  409 ;  or  show 
that  he  has  used  due  diligence,  without  effect,  to  obtain  reimbursements  : 
McCormack  v.  Obannon,  3  Munf.  484. 

Fifth.  Hence,  to  a  bill  by  a  surety  for  contribution,  the  principal  debtor 
ought  to  be  made  a  party :  Rainey  v.  Yarborough,  2  Ired.  Ch.  249. 


CONTRIBUTION  AND  EXONERATION.      541 

The  right  of  exoneration  arises  between  surety  and 
principal,  so  soon  as  the  surety  has  paid  any  part  of  the 
debt.  Immediately  on  making  such  payment,  he  may 
bring  assumpsit  at  law  against  his  principal  for  indem- 
nity. (//)  And  he  may  also  sue  the  creditor  in  equity  for 
an  assignment  of  any  mortgage  or  collateral  security  for 
the  debt,  so  that  he  may,  as  far  as  possible,  be  substituted 
in  his  place.  But  he  cannot  have  an  assignment  of  the 
debt,  itself,  for  that  is  determined  by  his  own  payment, 
and  a  new  debt  is  due  from  his  principal  to  himself,  (ly 

{h)  Toussaint  v.  Martinnant,  2  T.  R.  100 ;  Pownal  v.  Ferrand,  6  B.  & 
C.  439. 

(i)  Copis  V.  Middleton,  T.  &  R.  224;  Caulfield  v.  Maguire,  2  Jones  & 
Lat.  141,  164 ;  Hodgson  v.  Shaw,  3  M.  &  K.  183. 

'  In  support  of  the  doctrine  that  a  surety,  on  paying  the  debt,  is  entitled 
to  stand  in  the  place  of  the  creditor,  and  to  be  subrogated  to  all  his  rights 
against  the  principal  debtor,  see  Clason  v.  Morris,  10  Johns.  524 ;  Lewis 
r.  Palmer,  28  N.  Y.  276 ;  Erb's  Appeal,  2  Penna.  R.  296 ;  McDowell  v. 
Bank,  1  Harring.  369 ;  Tatum  v.  Tatum,  1  Ired.  Ch.  113 ;  Lownds  v.  Chis- 
holm,  2  McCord's  Ch.  455  ;  Perkins  v.  Kershaw,  1  Hill  Ch.  344 ;  Foster 
».  Trustees,  3  Ala.  302 ;  Rhodes  v.  Crockett,  2  Yerg.  346  ;  Wade  v.  Green, 
3  Humph.  547 ;  Neimcewicz  ».  Gahn,  3  Paige  614 ;  Salmon  v.  Clagett,  3 
Bland.  Ch.  173 :  Hampton  v.  Levy,  1  McCord  Ch.  116 ;  Burk  v.  Chrisman, 
3  B.  Monr.  50;  Yard  v.  Patton,  13  Penn.  St.  287;  Brewer  v.  Franklin 
Mills,  42  N.  H.  292 ;  York  v.  Landis,  65  N.  C.  535.  Actual  assignment  is 
not  necessary  in  this  country  to  subrogation,  in  the  case  of  a  surety.  Note 
to  Deering  v.  Winchelsea,  ut  supr. ;  Lloyd  v.  Barr,  11  Penn.  St.  48  ;  Gos- 
sin  V.  Brown,  Id.  531  ;  Bailey  v.  Brownfield,  20  Id.  45  ;  Cottrell's  App.,  23 
Id.  294.  Though  it  is  so,  in  the  case  of  a  stranger,  who  pays  the  debt 
voluntarily :  Sandford  v.  McLean,  3  Paige  117 ;  Bank  U.  S.  v.  Winston,  2 
Brock.  252.  But  subrogation  does  not  go  on  the  ground  of  contract ;  and, 
in  general,  when  any  one  is  compelled  to  pay,  where  another  is  primarily 
liable,  subrogation  takes  place  by  operation  of  law ;  as  in  the  case  of  a 
vendee  who  pays  a  judgment  against  his  vendor  :  Kyner  v.  Kyner,  6  Watts 
221.  See  the  remarks  of  Strong,  J.,  on  the  nature  of  subrogation,  in 
McCormick's  Admr.  v.  Irwin,  35  Penn.  St.  117.  If  he  is  surety  in  a  bond, 
he  is  to  be  considered  a  bond  creditor  of  the  obligor  :  Eppes  v.  Randolph, 
2  Call  103  ;  see  also  Thomson  v.  Palmer,  3  Rich.  Eq.  139 ;  note  to  Deering 
V.  Winchelsea.  And,  moreover,  in  many  of  the  states,  it  is  settled  in 
liberal  advance  of  the  doctrine  stated  in  the  text,  that  the  surety,  on  paying 


542  ADAMS's    DOCTRINE    OF    EQUITY. 

r*27m  "^^^  ^^^^  equity  *which  enables  a  surety,  after 
payment  by  himself,  to  recover  the  amount  from 
his  principal,  warrants  him  in  filing  a  bill  to  compel  pay- 
ment by  the  principal,  when  he  has  been  brought  under 
liability  by  the  debt  falling  due,  though  he  may  not  have 
been  actually  sued.(^")^ 

[k)  Mitf.  148 ;  Antrobus  v.  Davidson,  3  Meriv.  569,  578. 

the  bond  or  judgment  debt  of  the  principal,  may  even  become  entitled  to 
an  assignment  and  use  of  the  instrument  or  judgment  for  his  own  exonera- 
tion ;  the  payment  being  regarded  as  a  purchase,  and  not  as  an  extinguish- 
ment :  see  Burns  v.  Huntingdon  Bk.,  1  Penna.  R.  395  ;  Fleming  v.  Beaver, 
2  Rawle  132  ;  Schnitzel's  Appeal,  49  Penn.  St.  23  ;  Perkins  v.  Kershaw, 
1  Hill  Ch.  344  ;  Matthews  v.  Aiken,  1  Comst.  595 ;  Creager  v.  Brengle,  5 
Har.  &  J.  234 ;  Gadsden  v.  Lord,  1  Dessaus.  214 ;  Cuyler  v.  Ensworth,  6 
Paige  32;  Lathrop's  Appeal,  1  Penn.  St.  512;  Gossin  v.  Brown,  11  Id. 
531 ;  Baily  v.  Brownfield,  20  Id.  45  ;  Storms  v.  Storms,  3  Bush  (Ky.)  77  ; 
Arnot  V.  Woodburn,  35  Mo.  99  ;  Sears  v.  Laforce,  17  Iowa  473.  Even  an 
entry  of  satisfaction  on  the  judgment  against  the  principal,  if  without  the 
consent  of  the  surety,  will  not  affect  the  right  of  subrogation:  Baily  v. 
Brownfield.  But  see  Elwood  v.  Diedendorf,  5  Barb.  S.  C.  398.  This  rule 
appears  to  be  general  in  the  United  States,  except  in  Alabama  and  North 
Carolina :  Sanders  v.  Watson,  14  Ala.  198 ;  Brailey  v.  Sugg,  1  Dev.  &  Bat. 
Eq.  366  ;  the  debt  being  considered  there  as  extinguished  at  law,  and  the 
only  right  of  the  surety,  as  that  of  a  simple  contract  creditor.  See  note 
to  Deering  v.  Winchelsea,  ut  sup. 

The  surety  is  entitled,  by  the  operation  of  the  doctrine  of  subrogation, 
to  stand  in  all  respects  in  the  place  of  the  creditor,  and  therefore,  where 
the  latter  holds  a  mortgage  for  the  debt,  the  right  of  the  surety  to  enforce 
the  mortgage  against  the  principal  is  not  affected  by  the  fact  of  the  debt 
being  barred  by  the  statute :  Ohio  Life  Ins.  Co.  v.  Winn,  4  Md.  Ch.  254. 
And  so  a  surety  in  a  bond  to  the  United  States,  is  entitled  to  avail  himself 
of  their  prerogative  preference  against  the  other  creditors  :  U.  S.  v.  Hunter, 
5  Mason  62 ;  5  Peters  174.  The  surety,  however,  taking  the  rights  of  the 
creditor,- cannot  claim  to  stand  in  any  better  position  than  he:  Calvin  v. 
Owen,  22  Ala.  782. 

'  As  a  general  rule,  the  surety  is  not  entitled  to  be  subrogated,  or  to 
chum  contribution,  until  he  has  actually  paid  the  debt :  Rice  v.  Downing, 
12  B.  Monr.  44;  Morrison's  Adm.  v.  Tenn.  Ins.  Co.,  3  Benn.  (Mo.)  262  ; 
Bennett  v.  Buchanan,  3  Porter  (Ind.)  47  ;  and  see  Barnett  v.  Reed,  51 
Penn.  St.  194 ;  Hoover  v.  Epler,  52  Id.  522 ;  yet  when  his  land  is  extended 


CONTRIBUTION    AND    EXONERATION.  543 

Another  instance  of  contribution  occurs  where  mort- 
gages, renewed  fines,  or  other  encumbrances,  require 
discharge,  and  the  property  bound  by  them  is  not  abso- 
lutely vested  in  a  single  person ;  e.  g.,  where  difierent 
parcels  of  land  are  included  in  the  same  mortgage,  and 
are  afterwards  sold  to  different  owners,  or  where  a  mort- 
gage estate,  or  a  renewable  leasehold,  is  held  for  life  or 
in  tail,  with  remainde^rs  over,  or  has  devolved  upon  a 
dowress  and  the  heir.  In  these  cases  the  burden  is  to 
be  borne  by  the  parties  interested  according  to  the  value 
of  theu'  respective  interests,  and  the  benefit  which  they 
actually  derive  from  its  discharge.  (/)^     And  although  the 

(/)  White  V.  White,  9  Yes.  554 ;  Bulwer  v.  Astley,  1  Ph.  422 ;  Jones  v. 
Jones,  5  Hare  440 ;  Averell  v.  Wade,  LI.  &  G.  252  ;  3  Sug.  V.  &  P.  435-6. 

on  execution,  it  is  suflBcient,  though  without  payment :  Lord  v.  Staples,  3 
Foster  (N.  H.)  448.  Partial  payments  give  no  right  of  subrogation : 
Grove  v.  Brien,  1  Md.  439  ;  Neptune  Ins.  Co.  v.  Dorsey,  3  Md.  Ch.  334 ; 
Kyner  v.  Kyner,  6  Watts  221 ;  Gannett  v.  Blodgett,  39  N.  H.  150  ;  though 
the  surety  acquires  an  interest  in  the  securities  to  that  extent:  Grove  w. 
Brien,  ut  sup.  Where  the  principal  debtor  is  insolvent,  however,  his" 
surety  may  proceed,  before  paying  the  debt,  against  the  principal  for  in- 
demnity, or  to  subject  particular  assets  to  the  payment  of  the  debt :  Polk 
V.  Gallant,  2  Dev.  &  Bat.  Ch.  395  ;  Pride  v.  Boyce,  Rice  Eq.  275  ;  Washing- 
ton V.  Tait,  3  Humph.  543  ;  Stump  v.  Rogers,  1  Ham,  (Ohio)  533  ;  Ross  v. 
Clore,  3  Dana  193 ;  Bishop  v.  Day,  13  Verm.  81 ;  Hatcher  v.  Hatcher,  1 
Rand.  53  ;  Daniel  v.  Joyner,  3  Ired.  Eq.  513  ;  Taylor  ».  Heriot,  4  Dessaus. 
227  ;  Williams  v.  Helme,  1  Dev.  Ch.  151 ;  Tankersley  r.  Anderson,  4 
Dessaus.  44;  McConnell  v.  Scott,  15  Ohio  401  ;  Laughlin  v.  Ferguson,  6 
Dana  111.  See  Henry  v.  Compton,  2  Head  549.  So,  on  the  same  princi- 
ple, where  the  principal  is  dead,  the  surety  may  file  a  bill  quia  timet 
against  the  executor  and  the  creditor,  to  compel  the  former  to  pay  the 
debt,  and  exonerate  him.  He  may  enforce  against  the  estate  any  lien  of 
the  creditor,  and  as  a  part  of  the  creditor's  rights,  may  file  a  bill  for  the 
administration  of  the  estate.  The  creditor,  however,  must  be  made  a 
party  :  Stephenson  v.  Taverners,  9  Gratt.  398. 

'  See  Thomas  v.  Hearn,  2  Porter  262;  Chamberlayne  v.  Temple,  2  Rand, 
384 :  Hays  v.  Wood,  4  Id.  272 ;  Dupuy  c.  Johnson,  1  Bibb  562 ;  Poston  v. 
Eubank,  3  J.  J.  Marsh.  34 ;  Morrison  v.  Beckwith,  4  Monr.  76  ;  Williams 


544  ADAMs's    DOCTRINE    OF    EQUITY. 

creditor  himself  is  not  bound  by  this  equity,  but  may  pro- 
ceed against  whom  he  will,  yet  if  he  wilfully  render  its 

V.  Craig,  2  Ed.  Ch.  279 ;  Aiken  v.  Gale,  37  N.  H.  501.  But  where  there 
are  several  purchasers  in  succession  at  different  Umes,  of  parcels  of  a  lot 
bound  by  a  judgment  ©r  mortgage,  there  is  no  equality,  and  no  case  for 
contribution  between  the  purchasers.  "If,  for  instance,  there  be  a  judg- 
ment against  a  person  owning,  at  the  time,  three  acres  of  land,  and 
he  sells  one  acre  to  A.,  the  remaining  two  acres  are  first  chargeable  in 
equity  with  the  payment  of  the  judgment  debt ;  and  that,  too,  whether  the 
land  be  in  the  hands  of  the  debtor  himself,  or  his  heirs.  If  he  sells 
another  acre  to  B.,  the  remaining  acre  is  then  chargeable,  in  the  first  in- 
stance, with  the  debt,  as  against  B.,  as  well  as  against  A.  -,  and,  if  it 
should  prove  insufficient,  then  the  acre  sold  to  B.,  ought  to  supply  the 
deficiency  in  preference  to  the  acre  sold  to  A."  Chancellor  Kent,  in 
Clowes  V.  Dickenson,  5  Johns.  Ch.  235.  In  that  case  A.  purchased  a  lot  of 
land,  which  with  several  others,  was  subject  to  a  judgment.  B.  after- 
wards  purchased  the  residue  of  the  lots  so  encumbered,  and  having  pur- 
chased the  prior  judgment  in  the  name  of  another,  caused  A.'s  lot  to  be 
sold,  and  became  the  purchaser.  It  was  held  that  A.  was  entitled  to  have 
the  judgment  satisfied  out  of  the  lots  sold  to  B. ;  and  that,  on  application 
to  the  court,  the  sale  under  the  judgment  would  have  been  stayed.  But 
the  plaintiff's  application  being  made  as  much  as  four  year  after  the  sale, 
the  title  was  not  disturbed,  but  B.  was  compelled  to  pay  to  A.  the  amount 
for  which  A.'s  lot  was  sold.  The  same  equity  holds  not  only  as  between 
several  purchasers,  but  applies  where  the  owner  of  the  land  thus  bound 
gives  thereon  several  mortgages  of  different  date :  Schryver  v.  Teller,  9 
Paige  173.  The  doctrine  here  stated  has  been  approved  and  maintained 
by  a  train  of  decisions  in  the  several  states  :  James  v.  Hubbard,  1  Paige 
228  5  Gouverneur  v.  Lynch,  2  Id.  300  ;  Patty  v.  Pease,  8  Id.  277  ;  Gill  v. 
Lyon  et  al.,  1  Johns.  Ch.  447;  Mevey's  Appeal,  4  Barr  80;  Rathbone  v. 
Clarke,  9  Paige  648  ;  Shannon  v.  Marselis,  Saxton  413 ;  Woodruff  v.  De- 
pue,  1  McCart.  168  ;  Britton  v.  Upkyke,  2  Green  Ch.  125  ;  Wikoffw.  Davis. 
3  Id.  224  ;  Stanley  v.  Stocks,  1  Dev.  Ch.  314,  and  note  to  p.  317  ;  Stoney 
V.  Shultz,  1  Hill  Ch.  464,  5Q0  ;  Thompson  v.  Murray,  2  Id.  204 ;  Conrad  v. 
Harrison,  3  Leigh  532  ;  McClung  v.  Beirne,  10  Id.  394  ;  Nailer  r.  Stanley, 
10  S.  &  R.  450 ;  Zeigler  v.  Long,  2  Watts  205  ;  Pallen  v.  Bank,  1  Freem. 
Ch.  419 ;  Agric.  Bk.  v.  Pallen,  8  Sm.  &  Mar.  357 ;  Com.  Bank  v.  Western 
R.  Bank,  II  Ohio  444  ;  Gary  v.  Folsom,  14  Ohio  365 ;  Holden  v.  Pike,  24 
Maine  427  ;  Gushing  v.  Ayer,  25  Id.  383  ;  Brown  v.  Simons,  44  N.  H.  475  ; 
Cowden's  Estate,  1  Penn.  St.  267 ;  Becker  v.  Kehr,  49  Id.  223 ;  Gate  v. 
Adams,  24  Verm.  70  ;  Lyman  v.  Lyman,  32  Id.  79 ;  Sheperd  v.  Adams,  32 
Maine  65 ;  Jones  r.  Myrick,  8  Gratt.  180  ;  Winters  v.  Henderson,  2  Halst. 


CONTRIBUTION  AND  EXONERATION.      545 

enforcement  impossible,  as  by  discharging  one  of  several 
coparceners,  he  cannot  proceed  for  the  whole  debt  against 
the  others,  but  at  the  most  can  only  require  from  them 

Ch.  31 :  Johnson  v.  Williams,  4  Minn.  268  :  Mobile  Ins.  Co.  v.  Iluder,  35 
Ala.  717  ;  Ogden  t".  Glidden,  9  Wis.  46 :  Hunt  v.  Mansfield,  31  Conn.  488 
Cooper  r.  Bigly,  13  Mich.  463  ;  Hoy  v.  Bramhall,  4  Green  (N.  J.)  74,  563 
State  p.  Titus,  17  Wis.  241 ;  Meng  v.  Houser,  13  Rich.  (S.  C.)  Eq.  210 
Iglehart  r.  Crane,  42  111.  261  ;  McKinney  v.  Miller,  19  Mich.  142.  This 
doctrine  seems  to  have  originated  with  the  New  York  cases  above  cited,  it 
not  having  previously  been  acted  upon  in  cases  susceptible  of  its  applica- 
tion. See  Stevens  r.  Cooper,  1  Johns.  Ch.  425  ;  Cheesebrough  v.  Millard, 
1  Id.  409.  Xor  formerly  in  Virginia  :  Beverly  v.  Brooke.  2  Leigh  425.  And 
in  one  or  two  states  the  rule  is  repudiated.  See  Jobe  v.  O'Brien,  2  Humph. 
34 ;  Dickey  v.  Thompson,  8  B.  Monr.  312.  And  see  Parkman  v.  Welch, 
19  Pick.  231,  238;  Green  v.  Ramage,  18  Ohio  428  ;  Barney  v.  Myers,  28 
Iowa  472.  The  rule  that  purchasers  are  liable  to  contribute  intheinverse 
order  of  their  purchases,  to  the  discharge  of  a  paramount  encumbrance,  is 
not  applicable,  however,  Avhere  they  take  expressly  subject  to  the  encum- 
brance, and  it  forms  a  part  of  the  purchase-money  :  see  Briscoe  ».  Power,  47 
111.  447.  Therefore,  in  Pennsylvania,  where  by  statute,  a  mortgage  is  not 
discharged  at  sherifTs  sale,  except  under  certain  circumstances,  successive 
sheriflTs  vendees  of  different  tracts  bound  by  the  same  mortgage,  are  bound 
to  contribute  in  proportion  to  the  value  of  their  interests  without  regard 
to  priority :  Carpenter  v.  Koons,  20  Penn.  St.  222. 

Nor  is  the  doctrine  applicable  to  one  who  has  only  paid  part  of  the  pur- 
chase-money, for  he  is  liable  to  contribute  to  the  extent  of  the  unpaid 
balance :  Beddow  v.  Dewitt,  43  Penn.  St.  326. 

In  Sheperd  v.  Adams,  32  Maine  65,  it  was  held  that  the  only  remedy,  of 
the  subsequent  purchaser,  was  in  equity,  and  that  no  action  of  assumpsit 
could  be  brought  in  such  caae. 

The  rule  will  not  be  so  applied  as  to  affect  the  statutory  priority  of  the 
United  States:  U.  S.  v.  Duncan,  12  111.  523. 

Justice  Story,  in  his  Corns.  Eq.  Jurisp.,  s.  •1233  A,  refers  to  English 
authorities  in  support  of  the  position,  that  even  in  the  case  of  successive 
purchasers  or  encumbrancers,  the  original  encumbrance  ought  to  be  ap- 
portioned ratably  among  them.  But  see  the  error  of  his  reference  pointed 
out  by  the  late  Judge  Kennedy  in  Cowden's  Estate,  ubi  supra.  The  learned 
American  editor  of  the  Leading  Cases  in  Equity,  in  his  note  to  Aldrich  v. 
Cooper,  2  Lead.  Cas.  Eq.  56,  agrees  with  Judge  Story  in  his  strictures  on 
the  rule.     See  that  note,  for  a  discussion  of  the  subject. 


546  ADAMs's    DOCTRINE    OF    EQUITY. 

their  respective  shares,  (m)^  If  the  burden  has  been 
already  discharged  by  one  of  the  parties  liable,  he  will  be 
entitled  to  contribution  from  the  rest,  unless  he  has  shown 
an  intention  to  exonerate  the  estate.  But  if  his  interest 
is  that  of  tenant  •  in  tail  in  possession,  and  consequently 
convertible  at  his  option  into  an  absolute  estate,  a  pre- 
sumption arises  that  he  so  intended,  (n) 

The  doctrine  of  general  average  is  another  illustration 
of  the  equity  for  contribution,  and  is  the  last  which  will 
be  here  noticed.     The  circumstances   under  which  this 

{m)  Stirling  v.  Forrester,  3  Bligh.  0.  S.  575,  590. 

(n)  Wigsell  v.  Wigsell,  2  S.  &  S.  364  ;  Burrell  v.  Egremont,  7  Beav.  205 ; 
Faulkner  v.  Daniel,  3  Hare  199,  217. 

^  When  a  judgment  or  a  mortgage  is  a  lien  on  several  lots  of  land  owned 
by  different  persons,  and  the  judgment  creditor  or  mortgagee  releases  one 
of  the  subsequent  purchasers,  his  lien  upon  the  remaining  lots  will  be  di- 
minished by  the  value  of  the  lot  released  :  Stevens  v.  Cooper,  1  Johns.  Ch. 
425;  James  V.  Hubbard,  1  Paige  228;  Paxton  v.  Harner,  11  Penn.  St. 
312  ;  Guion  v.  Knapp,  6  Paige  35  ;  Jones  v.  Myrick,  8  Gratt.  180 ;  George 
V.  Wood,  9  Allen  83  ;  Stillman  v.  Stillman,  21  N.  J.  Eq.  126.  So,  if  after 
a  bill  filed  for  subrogation  against  a  creditor  of  two  funds  by  the  creditors 
of  the  doubly  charged  estate,  the  former  releases  the  other  fund  to  the 
debtor,  though  in  pursuance  of  a  previous  agreement,  he  will  be  compelled 
to  account  for  its  value,  and  will  be  considered  as  paid  to  that  extent :  Fas- 
sett  V.  Traber,  20  Ohio  540.  See  James  v.  Brown,  11  Mich.  25.  But  in 
order  to  make  the  general  rule  applicable,  the  creditor  must  have  actual 
notice  of  the  prior  conveyances  :  Cheesebrough  v.  Millard,  1  Johns.  Ch. 
409;  Guion  v.  Knapp,  6  Paige  35.  See  too,  Lock  v.  Fulford,  52  111.  166. 
Their  registration  is  not  notice,  because  it  cannot  appear  in  the  line  of  title  i 
along  which  the  creditor  is  bound  to  look  :  Stuyvesant  v.  Hone,  1  Sandf. 
Ch.  419  ;  Taylor  v.  Maris,  5  Rawle  51.  In  Lloyd  v.  Galbraith,  32  Penn. 
St.  103,  a  creditor  had  a  lien  upon  several  tracts  of  land,  some  of  which 
were  sold  by  the  debtor.  The  creditor  then  levied  upon  and  sold  the 
balance.  It  was  held  that  a  junior  encumbrancer  vrhose  lien  extended  only 
to  the  unsold  tracts  was  not  entitled  to  be  subrogated  to  the  paramount 
creditor's  lien  against  the  tracts  which  had  been  aliened.  As  between  the 
original  parties,  the  rule,  of  course,  does  not  hold  :  any  part  of  the  mort- 
gaged premises  is  bound  for  the  payment  of  the  whole  debt :  Coutant  v. 
Servoss,  3  Barb.  S.  C.  128.     See  Patty  v.  Pease,  8  Paige  277. 


OF     MARSHALLING.  547 

equity  *arises  are  where  a  ship  and  cargo  are  in  r*97i-| 
imminent  peril,  and  a  portion  is  intentionally  sac- 
rificed for  the  security  of  the  rest,  e.  g.,  where  goods  are 
thrown  overboard,  or  a  portion  of  the  ship's  rigging  cut 
away,  to  lighten  and  save  the  ship,  or  the  ship  itself  is 
intentionally  stranded,  to  save  her  cargo  from  a  tempest 
or  an  enemy,  or  a  part  of  the  cargo  is  delivered  up  by  way 
of  ransom,  or  is  sold  for  the  necessity  of  the  ship.  In  all 
these  cases  the  impending  danger  is  common  to  all,  and 
the  means  by  which  it  is  averted,  ought  to  be  a  common 
burden.  If,  therefore,  the  ship  and  the  residue  of  the 
cargo  are  preserved  by  the  sacrifice,  the  parties  interested 
in  the  ship,  her  freight,  and  the  merchandise  on  board, 
must  make  good  ratable  shares  of  the  loss,  proportioned 
to  the  value  which  their  own  goods  and  the  goods  sacri- 
ficed would  have  borne,  after  deducting  freight,  had  they 
safely  reached  the  port  of  discharge.  If,  on  the  contrary, 
the  sacrifice  is  not  intentionally  made,  but  is  damage  in- 
curred by  violence  or  stress  of  weather,  or  if  it  prove  un- 
availing, or  be  made  not  to  save  the  cargo,  but  to  save  the 
lives  and  liberty  of  the  crew,  the  principle  of  contribution 
does  not  apply,  and  the  loss  must  remain  where  it  origi- 
nally falls.  The  rates  of  contribution  are  generally  settled 
by  arbitration,  but  the  parties  are  not  compellable  to  refer, 
and  may  have  recourse  to  an  action  at  law  or  a  suit  in 
equity,  (o)^ 

The  equity  of  marshalling  arises  where  the  owner  of 
property  subject  to  a  charge,  has  subjected  it,  together 

(o)  Birkley  v.  Presgrave,  1  East  220 ;  Plummer  p.  Wildman,  3  M.  &  S. 
482 ;  Power  v.  Whitmore,  4  Id.  141 ;  Simonds  v.  White,  2  B.  &  C. 
*<05 ;  Hallett  i\  Bousfield,  18  Ves.  187 ;  2  Steph.  Bl.  179  5  Smith's  Merc. 
Law  292. 

1  Sturgess  ».  Cary,  2  Curtis  C.  C.  59. 


548  ADAMs's    DOCTRINE    OF    EQUITY. 

with  another  estate,  to  a  paramount  charge,  and  the  es- 
tate thus  doubly  charged  is  inadequate  to  satisfy  both  the 
claims.  In  this  case,  if  the  paramount  charge  be  by  way 
of  mortgage,  the  only  resource  for  the  puisne  mortgagee 
is  to  redeem  it,  and  then  to  tack  it  to  his  own  debt;  but 
if  it  is  only  a  charge  payable  out  of  the  produce  of  the 
estate,  and  not  conferring  on  the  paramount  creditor  a 
r*9791  ^%^*  ^^  *foreclose,  an  equity  arises  for  marshal- 
ling the  security  so  that  both  creditors  may,  if 
possible,  be  paid  in  full.(jt?)^     The  equity  is  a  personal 

(p)  Aldrich  v.  Cooper,  8  Ves.  382;  Titley  v.  Davies,  2  B.  C.  C.  393,  399. 

^  The  rule  of  equity,  that  where  one  has  a  lien  upon  two  funds,  and 
another  a  posterior  lien  upon  only  one  of  them,  the  former  will  be  com- 
pelled first  to  exhaust  the  subject  of  his  exclusive  lien,  and  will  be  per- 
mitted to  resort  to  the  other  only  for  the  deficiency,  is  well  established  in 
this  country:  Piatt  v.  St.  Clair,  6  Ham.  (Ohio)  233;  Russell  i).  Howard, 
2  McLean  489 ;  Findlay's  Ex'r.  v.  U.  S.  Bank,  2  Id.  44 ;  N.  Y.  Steamboat 
Co.  V.  New  Jersey  Co.,  1  Hopkins  460;  Evertson  v.  Booth,  19  Johns.  486  ; 
Fallen  v.  Agric.  Bank,  1  Freem.  Ch.  419,  424  ;  Kendall  v.  The  N.  England 
Co.,  13  Conn.  394-5  ;  Lodwick  v.  Johnson,  Wright  (Ohio)  498  ;  Thompson 
V.  Murray,  2  Hill  Ch.  210;  Miami  Co.  v.  U.  S.  Bank,  Wright  (Ohio)  249; 
W'illiams  v.  Washington,  1  Dev.  Ch.  137  ;  Dorr  v.  Shaw,  4  Johns.  Ch.  17; 
Trowbridge  v.  Harleston,  Walk.  Ch.  185  ;  Goss  v.  Lester,  1  Wis.  43;  House 
t'.  Thompson,  3  H/ead  (Tenn.)  512.  But  it  ought  to  appear  that  the  fund 
which  is  not  affected  by  the  junior  lien  is  fully  adequate  to  satisfy  the 
prior  lien,  and  the  remedy  for  realizing  it  is  prompt  and  eflficient :  Briggs 
r.  The  Planter's  Bank,  Freem.  Ch.  574;  Dorr  v.  Shaw,  5  Johns.  Ch.  17. 
The  rule  will  not  be  applied  to  defeat  an  equity  of  the  former  on  either 
fund,  attaching  prior  to  the  existence  of  the  latter's  claim  :  McCormick's 
Appeal,  57  Penn.  St.  54;  Jarvis  v.  Smith.  7  Abb.  (N.  Y.)  Pr.,  N.  S.  217. 
See  also  cases  cited,  note  2,  p.  270,  supra,  the  distinction  there  illustrated 
being  but  a  corollary  of  this  doctrine. 

Though  the  proposition  that  a  creditor  of  two  funds  will  be  restrained 
from  proceeding  against  the  doubly  charged  fund  till  he  has  exhausted  the 
other,  is  often  repeated  in  the  decisions,  it  has  been  acted  on,  in  general, 
only  where  both  funds  were  actually  within  the  control  of  the  Court;  and 
the  usual  course  is  merely  to  compel  him,  while  proceeding  against  the 
doubly  charged  fund,  to  place  his  remedies  against  the  other  at  the  dis- 
posal of  the  disappointed  creditors.  The  equity  of  the  latter  is  not,  indeed. 


OF    MARSHALLING.  549 

one  against  the  debtor,  and  does  not  bind  the  paramount 
creditor,  nor  the  debtor's  alienee  for  value. 

The  equity  is  not  binding  on  the  paramount  creditor, 
for  no  equity  can  be  created  against  him  by  the  fact  that 
some  one  else  has  taken  an  imperfect  security.  But  it  is 
an  equity  against  the  debtor  himself,  that  the  accidental 
resort  of  the  paramount  creditor  to  the  doubly  charged 

against  the  double  creditor  at  all,  but  only  against  the  common  debtor, 
that  he  should  not  be  permitted  to  get  back  the  fund  not  resorted  to,  freed 
from  its  liabilities,  on  account  of  the  accident  of  the  creditor's  recourse  to 
the  other.  This  end  can  be  obtained  quite  as  well  by  subrogation  as 
through  marshalling  by  actual  restraint;  and  it  is,  therefore,  very  difficult 
to  understand  how  equity  can  interfere  with  the  legal  rights  of  the  double 
creditor,  on  an  equity  which  is  no  greater  than  his  own,  and  which  can  be 
equally  protected  in  another  way.  In  several  cases  such  interference  has 
consequently  been  refused :  Ramsay's  App.,  2  AVatts  228 ;  Evans  v.  Duncan, 
4  Id.  24;  Neff's  App.,  9  W.  &  S.  36 ;  Shunk's  App.,  2  Penn.  St.  304; 
Cornish  r.  Wilson,  6  Gill  299 ;  Post  r.  Mackall,  3  Bland  486 ;  U.  S.  o. 
Duncan,'12  111.  523 ;  Chapman  v.  Hamilton,  19  Ala.  121 ;  Knowles  v.  Lawton, 
18  Ga.  476.  See  also  Lafarge  Ins.  Co.  v.  Bell,  22  Barb.  34 ;  Building  As- 
sociation V.  Conover,  I  McCart.  219;  Lloyd  v.  Galbraith,  32  Penn.  St.  103, 
stated  ante,  note  to  page  270;  and  Warren  v.  Warren,  30  Verm.  530.  In 
others  the  right  of  restraint  has  been  confined  to  cases  where  to  compel  a 
resort  to  the  singly  charged  fund  would  not  be  productive  of  any  additional 
risk,  injury  or  delay  to  the  double  creditor:  Brinkerhoff  v.  Marvin,  5  Johns. 
Ch.  320 ;  Evertson  v.  Booth,  19  Johns.  486 ;  see  James  v.  Hubbard,  1  Paige 
228;  Morrison  v.  Kurtz,  15  III.  193.  A  creditor  holding  security  upon  dif- 
ferent kinds  of  property  cannot  be  compelled  to  select  that  which  is  least 
convenient  and  available  to  himself,  in  order  to  aid  other  creditors  not  se- 
cured in  the  collection  of  their  demands :  Emmons  r.  Bradley,  56  Me.  333. 
In  N.  Y.  Steamboat  Co.  r.  The  N.  J.  Co.,  1  Hopkins  460 ;  Thompson  v. 
Murray,  2  Hill  Eq.  204 ;  Pallen  v.  Agricultural  Bank,  1  Freeman  Ch.  419; 
8  Sm.  »ib  Marsh.  357,  however,  the  doctrine  has  been  carried  to  even  a 
greater  length.  It  has  also  been  applied  in  New  York,  without  hesitation, 
and  perhaps  with  more  propriety,  to  the  case  of  a  creditor,  with  collateral 
security,  claiming  upon  a  fund  assigned  for  the  benefit  of  creditors:  Besley 
F.  Lawrence,  11  Paige  581  ;  though  the  contrary  is  now  established  in 
Pennsylvania:  Morris  r.  Olwine,  22  Penn.  St.  441 ;  Kittera's  Est.,  17  Id. 
413.  This  subject  is  discussed  in  the  note  to  Aldrich  r.  Cooper,  2  Lead. 
Cas.  Eq.  56. 


550  ADAMS's    DOCTRINE    OF    EQUITY. 

estate,  and  the  consequent  exhaustion  of  that  security, 
shall  not  enable  him  to  get  back  the  second  estate,  dis- 
charged of  both  debts.  If,  therefore,  the  paramount 
creditor  resorts  to  the  doubly  charged  estate,  the  puisne 
creditor  will  be  substituted  to  his  rights,  and  will  be  satis- 
fied out  of  the  other  fund,  to  the  extent  to  which  his  own 
may  be  exhausted.^  And  it  seems  that  he  may,  on  pro- 
posing just  terms,  require  the  paramount  creditor  to  pro- 
ceed against  the  estate  on  which  he  has  himself  no  claim. 
His  right,  however,  to  do  this  is  not  an  independent 
equity  against  the  creditor,  but  a  mere  ,incident  of  his 
equity  against  their  common  debtor ;  and,  therefore,  if 
the  paramount  claim  is  not  chargeable  on  two  funds,  both 
belonging  to  the  same  debtor,  but  is  merely  due  from  two 
persons,  one  of  whom  is  also  indebted  to  separate  cred- 
itors, there  is  no  equity  to  compel  a  resort  to  one  rather 
than  to  the  other,  or  to  alter  the  consequences  of  the  .elec- 
tion which  may  be  made. (5')^ 

(3)  Greenwood  v.  Taylor,  1  R.  &  M.  185 ;  Mason  v.  Bogg,  M.  &  C.  443  ; 
Ex  parte  Kendal,  17  Ves.  514 ;  Ex  parte  Field,  3  M.,  D.  &  D.  95. 

*  Bank  of  Kentucky  v.  Vance,  4  Litt.  168 ;  see  also  Eddy  v.  Traver,  6 
Paige  521 ;  Hawley  v.  Mancius,  7  Johns.  Ch.  174 ;  Hunt  v.  Townsend,  4 
Sandf.  Ch.  510 ;  Ramsay's  Appeal,  2  Watts  228  ;  Cheesebrough  v.  Millard, 
1  Johns.  Ch.  409 ;  Hastings'  Case,  10  Watts  303 ;  Averill  v.  Loucks,  6 
Barb.  S.  C.  470;  Besley  v.  Lawrence,  11  Paige  581 ;  Hunt  v.  Townsend, 
4  Sandf.  Ch.  510 ;  Fassett  r.  Traber,  20  Ohio  540  ;  Dunn  v.  Olney,  14  Penn. 
St.  220;  U.  S.  Ins.  Co.  v.  Shriver,  3  Md.  Ch.  382;  Nelson  v.  Dunn,  15  Ala. 
517.  But  this  rule  will  not  be  applied  where  it  will  work  injustice  to  the 
creditors  of  the  other  estate :  McGinnis's  App.,  16  Penn.  St.  445.  See 
U.  S.  ».  Duncan,  12  111.  523. 

»  See  Ayres  v.  Husted,  15  Conn.  504  ;  Sterling  t>.  Brightbill,  5  Watts 
229 ;  Ebenhardt's  App.,  8  W.  &  S.  327.  See  remarks  on  this  case,  in  Dunn 
V.  Olney,  14  Penn.  St.  219.  But  if,  in  such  case,  one  of  the  debtors,  or 
his  estate,  on  general  equity  principles,  or  by  agreement  of  the  parties,  is 
primarily  liable,  the  separate  creditors  of  the  other,  disappointed  by  the 
joint  creditors,  have  a  right  to  subrogation  :  Gearhart  v.  Jordan,  11  Penn. 
St.  331    Dunn  v.  Olney,  14  Id.  219  ;  Neff  v.  Miller,  8  Id  347. 


OF    MARSHALLING.  551 

The  principle  which  refuses  interference  as  against  the 
creditor  was  strongly  tested  in  a  case  arising  out  of  the 
rebellion  of  the  American  Colonies.  Subsequently  to  the 
Declaration  of  Independence,  an  act  was  passed  by  the  legis- 
lature of  Georgia  confiscating  the  estates  of  all  who  had 
retained  their  allegiance,  but  providing  that  debts  owing 
by  them  to  persons  who  had  favored  the  rebellion 
*should  be  paid  out  of  the  confiscated  estates;  ^.^1^^^^-] 
so  that  any  creditor  coming  within  the  tenor  of  L  ""  J 
the  act  had  two  sources  of  payment  to  which  he  might 
resort,  viz.,  first,  the  American  estates;  and  second,  the 
personal  liability  of  his  debtor.  A  bill  was  filed  by  the 
executors  of  a  banished  loyalist,  praying  that  certain  of 
his  creditors  might  be  compelled  to  seek  satisfaction  in 
the  first  instance  out  of  the  confiscated  property.  And 
it  is  obvious  that  if  any  equity  could  exist  for  controlling 
the  creditor,  it  might  have  been  well  exercised  in  a  case 
where  under  such  circumstances  as  these  he  had  acquired 
a  claim  on  an  independent  fund,  from  which,  if  rejected 
by  him,  his  debtor  could  reap  no  advantage.  The  claim 
was  disallowed,  on  the  ground  that  it  was  not  proved  that 
the  particular  creditor  could  avail  himself  of  the  fund; 
but  Lord  Eldon,  in  reviewing  the  cases,  expressed  con- 
siderable doubt  whether,  even  if  that  difficulty  had  not 
occurred,  the  supposed  equity  as  between  the  debtor  and 
the  creditor  could  exist,  (r) 

The  equity  is  apparently  not  binding  on  the  debtor's 
alienee  for  value,  notwithstanding  that  he  may  have 
taken  with  notice  of  the  facts,  unless  his  interest  were 
acquired  after  the  institution  of  a  suit.  For  although  the 
ordinary  rule  is,  that  an  alienee  with  notice  is  bound  by 
all  the  equities  which  bound  his  alienor,  yet  there  is  a 

(r)  Wright  v.  Simpson,  6  Yes.  71-1. 


652  ADAMS's    DOCTRINE    OF    EQUITY. 

distinction  in  regard  to  this  particular  equity;  because 
the  omission  of  the  creditor  to  take  an  express  collateral 
charge  raises  a  presumption  that  he  meant  to  leave  the 
equity  defeasible,  and  to  continue  the  owner's  power  of 
dealing  with  the  second  estate  for  value,  unfettered  by 
his  claim.  It  is  otherwise  if  the  debtor,  on  creating  the 
single  claim,  covenants  to  satisfy  the  paramount  charge 
out  of  the  other  estate,  or  fraudulently  conceals  its  exist- 
ence. For  then  a  purchaser  taking  with  notice  of  the 
covenant  or  concealment  will  be  bound  by  the  same  equity 
as  the  debtor  himself,  (s) 

*The  equities  of  contribution,  exoneration,  and 
■-  -J  marshalling,  are  applied,  as  already  noticed,  in 
the  administration  of  assets,  to  rectify  disorders  which 
may  incidentally  occur. 

The  two  former  equities  are  applied  when  debts  or 
legacies  are  charged  on  several  kinds  of  assets,  either 
pari  passu  or  successively ;  as,  for  example,  where  estates 
subject  to  a  charge  descend  to  several  heirs  in  different 
lines  of  descent,  or  are  given  to  several  devisees,  all  the 
heirs  in  the  one  case,  and  all  the  devisees  in  the  other, 
must  contribute  to  the  charge;^  but. if  there  be  both  heirs 
and  devisees,  the  heirs  can  have  no  contribution  from 

(s)  Averall  r.  Wade,  LI.  &  G.  252 ;  Hamilton  v.  Royse,  2  Sch.  &  L.  315, 
commented  on  in  LI.  &  G.  263 ;  Barnes  v.  Racster,  1  N.  C.  C.  401  ;  Bugden 
V.  Bignold,  2  Id.  377. 

^  When  lands  held  by  several  devisees  in  the  same  will,  are  charged  in 
equity  to  satisfy  a  bond  debt  of  the  devisor,  the  decree  should  be  against 
the  lands  of  all  the  devisees,  or  the  money  received  or  claimed  in  lieu  there- 
of, in  ratable  proportions,  and  not  against  the  land  of  one  only,  with  liberty 
to  that  one  to  sue  the  others  for  contribution  :  Forster  v.  Crenshaw's  Ex'i'S.. 
3  Munf.  514;  See  also  Livingston  v.  Livingston,  3  Jolins.  Ch.  148.  As  to 
contribution  among  co-heirs,  see  Schermerhorn  v.  Barhydt,  9  Paige  28. 
See,  on  the  subject  of  contribution  between  legatees  :  Peeples  v.  llorton, 
39  Miss.  406,  where  it  was  held  under  the  circumstances,  not  to  exist. 


OF    MARSHALLING.  553 

the  devisees,  because  theii'  own  estate  is  first  liable.^  If, 
on  the  other  hand,  a  charge  is  levied  on  a  fund  out  of  its 
regular  order,  as,  for  instance,  on  a  devised  instead  of  a 
descended  estate,  or  on  a  descended  estate  instead  of  the 
general  personalty,  the  devisee  in  the  one  case,  or  the 
heir  in  the  other,  may  claim  exoneration.  The  necessity, 
however,  for  such  a  claim  can  only  exist  where  the  regu- 
lar order  of  liability  has  been  infringed ;  and  in  ordinary 
administration  suits  it  is  not  likely  to  occur,  except  in 
the  particular  instance  of  a  mortgaged  estate.  In  this 
case  the  mortgage,  like  any  other  specialty  debt,  will,  if 
claimed  by  the  creditor,  be  discharged  out  of  the  person- 
alty, and  the  question  will  subsequently  arise,  whether  as 
between  the  respective  owners  of  the  several  funds,  the 
devisee  or  heir  can  claim  the  benefit  of  its  discharge,  or 
whether  he  must  restore  its  amount  to  the  personalty.  (^)^ 

{t)  Supra,  Administration  of  Assets. 

'  See  in  agreement  with  the  text,  Livingston  v.  Newkirk,  3  Johns.  Ch. 
312,  320  ;  Stires  v.  Stires,  1  Halsted's  Ch.  224  ;  Adams  v.  Brackett,  5  Mete. 
280.  But  the  right  of  the  devisee  as  against  the  heir  is  different  when  the 
fund  for  payment  of  debts  is  by  the  will  of  blended  real  and  personal  pro- 
perty. Thus,  when  a  testator  devised  his  estate  real  and  personal,  to  be 
divided  among  his  next  of  kin  "  as  soon  as  his  debts  and  legacies  are  paid, 
and  not  until  then  ;"  it  charges  the  estate  with  payment  of  the  debts  and 
legacies  ;  and  after-acquired  real  estate,  as  to  which  the  testator  died  in- 
testate, is  exonerated  until  the  other  is  exhausted  :  Hallr.  Hall,  2  McCord's 
Ch.  269,  302.  See  also  Hassanclever  v.  Tucker,  2  Binn.  525 ;  Knight  v. 
Knight,  6  Jones  Eq.  (N.  C.)  134.    See,  ante,  263,  note. 

*  The  devisee  or  heir  of  a  mortgaged  estate,  has,  as  a  general  rule,  the 
right  to  throw  the  burden  of  the  mortgage  upon  the  personal  estate,  except 
as  against  specific  and  pecuniary  legatees.  See  Torr's  Estate,  2  Rawle 
250,  254  ;  Mansell's  Estate,  1  Parsons' s  Sel.  Eq.  Cas.  367.  But  see  note  to 
page  264,  ante.  See  also  cited  cases,  note  p.  261,  supra  ;  and  Townshend 
».  Mostyn,  26  Beav.  72.  But  not  so,  where  the  encumbrance  was  not  the 
primary  personal  debt  of  the  decedent ;  then  the  land  is  first  chargeable, 
and  the  heir  or  devisee  cannot  claim  exoneration,  even  though  there  were  a 
personal  covenant  by  the  decedent  with  the  mortgagor  to  pay  the  debt : 


554  ADAMS's    DOCTRINE    OF    EQUITY. 

The  equity  of  marshalling  is  applied  in  administration 
suits,  where  debts  or  legacies  are  charged,  some  on  seve- 
ral kinds  of  assets,  and  some  on  one  kind  only,  and  the 
doubly  charged  assets  have  been  applied  in  discharge  of 
the  doubly  secured  claims. 

Under  the  old  law  this  equity  was  often  exercised  in 

*favor  of  simple   contract  creditors,    where   the 

r*2751  . 

L         -■   personalty,  which  then  constituted  the  only  fund, 

had  been  wholly  or  partially  exhausted  by  superior  cred- 
itors, who  might  have  resorted  to  the  real  estate;  viz., 
by  specialty  creditors,  by  mortgagees,  or  by  vendors 
claiming  a  lien  for  unpaid  purchase-money  (w)^     But  the 

{«)  Aldrich  v.  Cooper,  8  Ves.  382,  389  ;  Selby  v.  Selby,  4  Russ.  336. 

Cumberland  v.  Codrington,  3  Johns.  Ch.  229  ;  Mitchell  v.  Mitchell,  3  Md. 
Ch.  73.    See  also  note,  p.  264-5,  supra. 

The  right  of  exoneration  by  the  holder  of  an  equity  of  redemption,  as 
against  the  personal  estate,  accrues  only  on  the  administration  of  the 
assets,  and  need  not  be  asserted  till  there  are  assets  to  be  administered. 
Lapse  of  time,  therefore,  where  for  any  reason  the  administration  of  an 
estate  has  been  impossible,  will  not  affect  the  right :  Mellersh  v.  Bridger, 
17  Jurist  908. 

Where  a  testator  devises  several  estates,  charged  generally  with  the 
payment  of  debts,  to  diflFerent  persons,  and  afterwards  mortgages  one, 
the  devisee  of  the  mortgaged  estate  is  entitled  to  contribution  from  the 
others:  Middleton  v.  Middleton,  15  Beav.  450.  But,  in  general,  the  rule 
is,  that  a  devisee  subject  to  a  mortgage,  must  bear  the  whole  burden,  as 
regards  other  devisees:  Mason's  Est.,  1  Pars.  Eq.  129  ;  s.  c.  4  Penn.  St. 
497. 

^  See  Alston  v.  Munford,  1  Brock.  266  ;  Haydon  v.  Goode,  4  Hen.  & 
Munf.  460;  Cralle  v.  Meem,  8  Gratt.  496.  Where  specialty  debts  of  a  de- 
ceased person  have  been  paid  out  of  his  personal  estate,  which  at  the  time 
was  sufficient  also  to  pay  his  simple  contract  debts,  and  the  executor  subse- 
quently commits  a  devastavit,  which  renders  the  personal  estate  insufficient 
to  pay  the  simple  contract  creditors,  they  are  entitled  to  be  paid  out  of  the 
real  estate  of  the  debtor,  to  the  extent  to  which  the  personal  estate  has  been 
exonerated  by  the  specialty  creditors :  Ellard  v.  Cooper,  1  Irish  L.  &  Eq.  N. 
S.  376  (Chancellor).  In  the  same  case  it  was  held  that  simple  contract 
creditors,  who  have,  in  consequence  of  the  payment  of  specialty  creditors 


OF    MARSHALLING.  555 

necessity  for  this  course  has  ceased  under  the  late  statute, 
making  real  estate,  whether  freehold  or  copyhold,  di- 
rectly liable  as  assets  for  simple  contract  debts,  (e;)  The 
equity,  howerer,  is  still  applicable  in  favor  of  devisees  or 
legatees,  though  it  is  seldom  required  by  devisees  or  by 
specific  legatees,  because  their  funds  are  seldom  applied 
before  their  turn.  The  case  of  general  pecuniary  lega- 
cies is  different ;  for  they  are  not  gifts  of  any  specific 
thing,  which  may  be  set  apart  until  its  turn  arrives,  but 
they  are  gifts  of  money  out  of  the  general  personalty 
after  satisfaction  of  the  debts  ;  and,  therefore,  if  they 
have  not  been  protected  by  a  charge  on  the  realty,  the 
fund  may  be  exhausted  before  their  turn  arrives.  This 
exhaustion  is  remedied  by  marshalling ;  but  subject  to 
the  restriction  that  it  must  not  operate  against  any  one, 
who  is  equally  an  object  of  the  testator's  bounty,  and 
whose  interest  is  by  law  not  liable  in  priority  to  the 
legatee's. 

In  accordance  with  this  rule,  an  entire  or  partial  ex- 
haustion of  the  personal  estate  will  warrant  marshalling 
in  favor  of  legatees ;  but  such  marshalling  can  only  be 
directed  against  real  assets  descended,  land  devised  for  or 
charged  with  payment  of  debts,  and  land  devised  subject 
to  a  mortgage.^     It  cannot  be  directed  as  against  other 

(r)  3  &  4  Wm.  4,  c.  104. 

out  of  the  personal  estate  of  the  deceased  debtor,  acquired  a  right  of  mar- 
shalling his  real  estate,  are  not  barred  under  the  Statute  of  Limitations  by 
less  than  twenty  years. 

In  Fordhain  v.  Wallis,  17  Jurist  228,  however,  it  was  held  that  as 
simple  contract  creditors  have  now  a  right  to  the  real  assets  in  England, 
the  doctrine  of  marshalling,  for  whatever  other  purpose  now  kept  alive  as 
to  them,  would  not  be  applied  merely  for  the  purpose  of  giving  them  a 
longer  period  of  limitation,  by  substituting  them  in  the  place  of  specialty 
creditors. 

^  Or  subject  to  the  vendor's  lien  for  purchase-money  which  the  person- 


656  ADAMS'S    DOCTRINE    OF    EQUITY. 

land  devised  or  as  against  specific  legatees,  (m')^  The  man- 
ner in  which  the  exhaustion  is  caused  is  generally  by^ 
r*97r'l    V^y^^^^  *of' creditors,  but  it  may  be  also  caused 
by  payment  of  legacies,  where  some  legacies  are 
charged  on  both  r.eal  and  personal  estate,  and  others  on 

(to)  Wythe  ».  Henniker,  2  M.  &  K.  635  ;  Mirehouse  v.  Scaife,  2  M.  &  C. 
695;  Sproule  v.  Prior,  8  Sim.  189;  Strickland  v.  Strickland,  10  Id.  374; 
3  Sug.  V.  &  P.  c.  xviii.,  s.  2.  [See  Patterson  v.  Scott,  1  De  G.  Macii.  &  G. 
531.] 

alty  is  taken  to  pay:  Birds  v.  Askey,  24  Beav.  618;  Lilford  v.  Powys 
Keck,  L.  R.  1  Eq.  347 ;  where  Wythe  v.  Henniker  (infra  note  w),  was  not 
followed.  Real  assets  descended  will  not  be  marshalled  in  aid  of  either  a 
general  or  residuary  legacy  :  Walker's  Estate,  3  Rawle  229.  See  also  Hays 
V.  Jackson,  6  Mass.  149  ;  Leigh  v.  Savidge,  1  McCarter  (N.  J.)  124.  Aliter, 
if  the  legacy  is  pecuniary  or  specific  :  Mollan  v.  Griffith,  3  Paige  402  ;  Wil- 
cox V.  Wilcox,  13  Allen  (Mass.)  252;  but  see  Gerken's  Estate,  1  Tucker 
(N.  Y.  Surr.)  49.  But  in  some  cases,  lands  taken  by  descent  seem  to  have 
been  charged  even  before  what  are,  properly,  general  legacies.  See  Robards 
V.  Wortham,  2  Dev.  Eq.  173,  wherein  it  was  said  that  "  descended  lands 
must  pay  all  debts  for  which  the  real  estate  is  liable,  in  exoneration  of  all 
but  residuary  legacies,  or  of  other  land  devised  for  the  payment  of  debts." 
To  the  same  effect  are  Brown  v.  James,  3  Strob.  Eq.  24-26,  and  Warley 
V.  Warley,  1  Bailey  Eq.  397.  See  on  this  subject  note,  ante,  p.  263  ; 
Verdier  v.  Verdier,  12  Rich.  (S.  C.)  Eq.  138. 

^  Livingston  v.  Livingston,  3  Johns.  Ch.  148,  158  ;  McCampbell  v.  Mc- 
Campbell,  5  Litt.  92 ;  Hoover  v.  Hoover,  5  Penn.  St.  351.  Respecting  the 
relative  rights  of  specific  legatees  and  devisees,  there  is  a  diversity  of  de- 
cision. The  English  rule,  that  if  specific  legacies  have  been  applied  to 
pay  specialty  debts,  the  specific  legatees  are  entitled  to  contribution  against 
the  devisees  of  the  realty,  was  upheld  in  Chase  v.  Lockerman,  11  Gill.  &  J. 
185.  But  other  decisions  exempt  the  devisees  altogether,  and  render  the 
specific  legatees  first  liable.  See  Miller  v.  Harwell,  3  Murphey  194; 
Warley  ».  Warley,  1  Bailey  Eq.  397 ;  Okeson's  Appeal,  59  Penn.  St.  99. 
See  on  this  subject  note,  ante,  p.  263.  Since  by  the  English  Wills  Act 
a  residuary  devise  comprises  all  the  real  estate  the  testator  may  be  seised 
of  at  the  time  of  his  death,  and  also  all  devises  which  lapse  or  fail,  a  general 
pecuniary  legatee  has  a  right  of  marshalling  against  the  residuary 
devisee:  Hensman  r.  Fryer,  L.  R.  2  Eq.  627.  Though  there  appears 
to  be  some  conflict  of  authority  on  the  point :  Robinson  v.  Mclver,  63  N 
C.  645. 


OF    MARSHALLING.  557 

the  personal  estate  alone.^  It  will  not,  however,  arise 
unless  the  legacy  which  requires  its  aid  was  originally 
chargeable  on  the  personalty  alone.  If  i  originally  af- 
fected both  real  and  personal  estate,  but  has  failed  as  a 
charge  on  the  realty  by  an  event  subsequent  to  the  testa- 
tor's death,  e.  g.,  by  the  death  of  the  legatee  before  the 
time  of  payment,  there  is  no  case  for  marshalling.  (:r) 

If  the  exhaustion  be  caused  by  payment  of  simple  con- 
tract creditors  under  the  statute,  it  may  be  questioned 
whether  the  legatees  can  insist  on  marshalling.  For  the 
statute  merely  declares  the  land  assets  to  be  admin- 
istered in  equity,  and  does  not,  therefore,  give  the  cred- 
itors an  election  between  the  funds,  but  compels  them  to 
exhaust  the  personalty,  before  they  can  have  recourse  to 
the  land.(^)^ 

An  attempt  has  been  made  to  apply  the  equity  of  mar- 
shalling to  remedy  the  avoidance  of  charitable  bequests, 
where  such  bequests  have  been  made  payable  out  of  the 
general  assets,  instead  of  being  exclusively  charged  on 
the  pure  personalty,  such  as  money  or  stock.     A  charita- 

(x)  Ilanby  r.  Roberts,  Amb.  127;  Prowse  v.  Abingdon,  1  Atk.  482; 
Pearce  v.  Loman,  3  Yes.  135 ;   2  Jarm.  on  Wills  607. 
{y)  3  &  4  ^\m.  4,  c.  104. 

*  Where  there  are  two  classes  of  legatees,  one  having  a  charge  on  real 
estate,  and  the  other  having  no  such  charge,  and  the  personal  estate  is  not 
sufficient  to  pay  both,  equity  vrill  marshal  the  assets  so  as  to  throw  the 
former  class  upon  the  real  estate.  The  rule  is  the  same  where  there  is 
only  one  legacy  charged  upon  land  ;  and  it  is  not  material  that  the  charge 
is  made  only  in  case  the  personal  estate  shall  be  insufficient :  Scales  v.  Col- 
lins, 9  Hare  656. 

*  The  correctness  of  this  view  is  questioned.  See  AVhite  and  Tudors 
Lead.  Cas.  Eq.,  vol.  ii.,  part  1,  p.  76,  and  it  is  now  settled  that  legatees 
are  entitled  to  marshalling,  as  well  where  the  exhaustion  is  caused  by  the 
simple  contract,  as  by  the  specialty  creditors  :  Tombs  p.  Roch,  2  Coll.  499; 
Fleming  r.  Buchanan,  3  De  G.,  M.  &  G,  976 ;  Patterson  v.  Scott,  1  Id. 
531. 


558  ADAMS's    DOCTRINE    OF    EQUITY. 

ble  legacy,  thus  given,  is  void  by  law  so  far  as  it  is  paya- 
ble out  of  the  mixed  personalty,  such  for  example,  as 
mortgages  and  leaseholds  ;  and  attempts  have  therefore 
been  made  to  throw  the  other  legacies  on  that  portion  of 
the  estate,  in  order  that  the  charitable  legacy  may  be  paid 
in  full  out  of  the  rest.  The  principle,  however,  of  mar- 
shalling does  not  here  apply ;  for  the  reason  of  the  failure 
is  not  that  some  prior  claimant  has  appropriated  the  legiti- 
mate fund,  but  that  the  fund  given  is  in  part  illegal.  The 
Court,  therefore,  will  not,  either  directly  or  indirectly,  aid 
r*o77-i  the  gift,  but  *will  appropriate  the  estate  as  if  no 
legal  objection  existed,  by  charging  the  legacy  on 
both  funds  in  proportion  to  their  values ;  and  will  declare 
so  much  of  the  charitable  legacy  to  fail,  as  would  in  that 
way  be  payable  out  of  the  prohibited  fund.(0)^ 

(z)  Hobson  V.  Blackburn,  1  K.  273  ;  Philanthropic  Society  v.  Kemp,  4 
Beav.  581 ;  Sturge  v.  Dimsdale,  6  Id.  462, 

'  See,  accord,  Weight  v.  Trustees  of  the  M.  E.  Church,  1  Hofi".  Ch.  202. 
But  where  it  is  clear  that  the  testator  intended  that  charity  legacies  should 
be  paid  out  of  the  pure  personalty,  the  assets  will  be  marshalled,  so  as  to 
throw  the  other  legacies  on  the  personalty  savoring  of  realty :  Robinson  v. 
Geldard,  3  Macn.  &  Gord.  735. 


OF    INFANCY.  659 


*CHAPTER    yi.  [*278] 

OF   INFANCY,    IDIOCY,    AND    LUNACY. 

The  last  equity  which  remains  for  notice  is  the  equity 
for  administering  the  estates  and  protecting  the  persons  of 
infants,  idiots,  and  lunatics. 

The  protection  of  an  infant's  person  and  estate,  is, 
to  some  extent,  provided  for  in  the  ordinary  course  of 
law;  viz.,  by  right  of  guardianship,  extending  sometimes 
to  the  person  alone,  and  sometimes  to  both  the  person  and 
estate;  and  the  superintendence  of  this  right  is  effected 
by  writ  of  habeas  corpus  in  respect  of  the  person,  and  by 
writ  of  account  at  law  or  bUl  for  account  in  equity  in 
respect  of  the  estate.  The  estate  is  also  in  many  in- 
satnces  protected  by  being  vested  in  trustees  with  express 
powers  of  management  and  application;  in  which  qase 
their  conduct  will  be  regulated  under  the  ordinary  juris- 
diction over  trusts.  And  if  property  be  vested  in  a  trus- 
tee, the  right  of  the  guardian  to  the  general  custody  of 
the  estate  does  not  extend  to  the' property  so  vested,  so 
as  to  exonerate  the  trustee  from  seeing  to  its  safety. 

The  guardianship  of  the  person,  during  the  father's 
lifetime,  resides  in  him ;  and  he  is  entitled  in  his  parental 
right  to  the  custody  and  education  of  the  infant,  but  not 
to  the  custody  of  his  estate. 

The  guardianship  of  the  estate  during  the  father's  life- 


560  ADAMS's    DOCTRINE     OF    EQUITY. 

time,  and  of  both  person  and  estate  after  his  death, 
r*97Q1  ^belonged,  at  common  law,  to  the  guardian  in 
socage,  where  such  a  guardian  existed ;  and  in 
default  of  a  statutory  guardian,  still  belongs  to  him. 
But  guardianship  of  this  class  exists  only  as  an  incident 
of  tenure,  and  is  confined  to  cases  where  the  legal  estate 
in  hereditaments  of  socage  tenure  descends  on  the  infant. 
It  is  vested  in  the  nearest  of  kin,  whether  the  father  or 
a  more  remote  relation,  who  cannot  by  descent  have  the 
socage  estate;  and  determines  at  the  age  of  fourteen,  or 
according  to  another  opinion,  so  soon  after  that  age  as 
there  is  another  guardian,  either  by  election  of  the  infant 
or  otherwise,  prepared  to  succeed.  With  respect  to  the 
property  of  the  ward,  the  right  of  guardian  in  socage  ex- 
tends to  all  descended  hereditaments,  whether  lying  in 
tenure  or  not;  and  he  is  said  to  have,  not  barely  an  au- 
thority, but  an  actual  estate,  enabling  him  to  -demise  for 
the  duration  of  his-  guardianship,  or  to  occupy  personally 
for  the  ward's  benefit.  The  extent  of  his  authority  over 
the  personal  estate  is  doubtful;  but  Mr.  Hargrave  thinks 
that  the  custody  of  the  person  must  draw  after  it  the 
custody  of  every  species  of  property  for  Avhich  the  law 
has  not  otherwise  provided.^ 

The  guardianship  in  socage  is  the  most  important  of  the 
common  law  guardianships;  but  not  the  only  one.  There 
are  five  other  guardianships,  of  more  limited  operation ; 
viz.,  1.  By  nature;  which,  like  that  in  socage,  is  an  in- 

'  "The  guardianship  in  socage  may  be  considered  as  gone  into  disuse  ; 
and  it  can  hardly  be  said  to  exist  in  this  country,  for  the  guardian  must 
be  some  relation  by  blood,  who  cannot  possibly  inherit,  and  such  a  case 
can  rarely  exist:"  Kent's  Com.,  vol.  ii.,  p.  223.  "And  as  all  the  children, 
male  and  female,  equally  inherit,  with  us  ;  the  guardianship  by  nature, 
would  seem  to  extend  to  all  the  children,  and  guardianship  by  nurture,  is 
merged  in  the  more  durable  title  of  guardian  by  nature  :"  Id.  pp.  220,  221. 


OF     INFANCY.  561 

cident  of  tenure.  This  guardianship  is  of  an  heir  appa- 
rent onlv,  and  is  vested  in  the  ancestor  whose  heir  the 
infant  is.  It  continues  till  twenty-one,  and  is  confined  to 
the  person.  2.  For  nurture ;  which  is  of  all  the  children, 
and  not  only  of  the  heir  apparent.  It  belongs  exclusively 
to  the  father,  or  at  his  decease  to  the  mother;  continues 
till  fourteen,  and  is  confined  to  the  person.  3.  By  the 
custom  of  London ;  which  is  where  a  parent,  free  of  the 
city,  leaves  an  unmarried  orphan.  This  guardianship  is 
vested  in  the  mayor  and  aldermen ;  continues  till  twenty- 
one  as  to  males,  and  till  eighteen  or  marriage  as  to  females ; 
and  was  originally  of  the  person  only,  but  subsequently 
extended  by  Richard  II.  *to  the  lands  and  goods.  rH:9CA-i 
4.  By  custom  of  other  boroughs  and  manors.  5. 
By  election  of  the  infant ;  which  is  on  the  termination 
of  guardianship  in  socage  by  the  infant's  attaining  four- 
teen, and  confers  on  the  guardian  by  election  the  same  ' 
office  and  employment  which  was  previously  in  the  guar- 
dian in  socage.  And  it  is  said  by  Lord  Coke,  that  in 
certain  cases  the  same  thing  may  be  done  by  an  infant 
under  fourteen. 

The  guardianship  by  statute,  which  is  now  the  most 
important  of  all  the  guardianships,  originates  in  the  sta- 
tute for  abolishing  tenures  in  capUe.ia)  Before  that 
statute  a  father,  tenant  in  socage,  could  not  have  disposed 
of  the  custody  of  his  heir,  for  it  belonged  to  the  legal 
guardian.  But  by  the  8th  section  of  that  statute,  the 
father  of  an  unmarried  infant  is  enabled  (without  preju- 
dice, however,  to  the  custom  of  London)  to  appoint  a 
guardian  by  deed  or  will,  whose  appointment  will  be  good 
against  all  persons  claiming  as  guardians  in  socage  or 

(a)  12  Car.  2,  c.  24,  8.  8. 

36 


562  ADAMS's    DOCTRINE    OF    EQUITY. 

otherwise/  The  authority  of  the  statute  guardian  con- 
tinues till  twenty-one,  and  he  is  entitled  to  the  custody 
of  the  person  and  of  the  real  and  personal  estate,  includ- 
ing hereditaments  acquired  by  purchase,  with  the  same 
authorities  and  remedies  as  guardian  in  socage.  (^) 

The  superintendence  of  the  guardianship  in  respect  of 
the  person,  so  as  to  discharge  from  illegal  custody,  or  to 
protect  from  cruelty  or  ill-usage  by  the  legal  guardian,  is 
exercised  by  the  Court  of  Queen's  Bench  on  writ  of  habeas 
corpus.     The   same  Avrit  is  issuable  out  of  the  Court  of 

(6)  See  generally  as  to  guardianship,  Ilargr.  on  Co.  Litt.,87  b..  n.  59  to 
73  ;  2  Steph.  Bl.  331-345  ;  Chambers  on  Infancy  54-74,  509-522. 

^  The  statute  12  Car.  2,  c.  24,  has  been  very  generally  adopted,  or  re- 
enacted,  in  the  United  States.  See  Elmer's  N.  Jersey  Digest,  title  Wills  ; 
Act  of  Virginia,  1798,  V.  R.  C,  vol.  i.,  240;  Purdon's  Penn.  Dig.,  title 
Wills ;  Chase's  Stat.  Ohio,  vol.  iii.,  1788.  A  father  only^  can  appoint  a 
testamentary  guardian  of  his  children.  The  power  does  not  extend  to  a 
grandfather :  Hoyt  v.  Hilton,  2  Ed.  Ch.  202.  Nor  to  a  mother  :  Matter  of 
Pierce,  12  How.  Pr.  532.  The  desire  of  the  mother  expressed  in  a  will  in 
regard  to  the  appointment  of  a  guardian  will  be  followed,  where  the  father 
died  without  appointing:  In  the  matter  of  Turner,  4  Green  (N.  J.)  433. 
When  a  testamentary  guardian  is  appointed  by  the  father,  the  natural 
right  of  the  mother  must  yield  to  the  will  of  the  father:  Van  Ilouten's 
Case,  2  Green  Ch,  220.  But  the  father's  intention  to  appoint  ought  to  be 
very  manifest :  Id.;  and  see  Peyton  v.  Smith,  2  Dev.  &  Batt.  Ch.  325; 
Gaines  v.  Spann,  2  Brock.  81.  The  testamentary  guardian  has  the  same 
right  to  direct  the  religious  education  of  the  ward,  as  the  father:  Re 
Browne,  2  Irish  Ch.  151.  In  Pennsylvania,  under  the  Act  of  1833,  a  de- 
vise of  the  guardianship  of  a  minor  by  any  other  than  the  father  is  void. 
But  a  devise  by  a  grandfather,  or  other  person,  to  a  child,  on  condition 
that  a  person  named  in  the  will  shall  be  guardian,  is  good ;  and  a  refusal 
by  the  father  to  permit  such  guardianship,  is  a  forfeiture  of  the  estate.  An 
acceptance,  however,  by  the  father,  of  a  benefit,  under  the  will,  estops  him 
from  objecting  afterwards.  In  all  such  cases,  such  a  construction  must  be 
put  upon  the  will,  as  may  be  most  beneficial  to  the  children,  without  ex- 
posing the  estate  to  forfeiture,  or  interfering  with  the  intention  of  the  tes- 
tator ;  and  therefore  where  a  stranger  is  thus  appointed  guardian,  but  the 
guardianship  is  not  expressly  extended  to  the  person,  it  will  be  confined  to 
the  estate :  Vanartsdalen  v.  VanartsQalen,  14  Penn.  St.  384. 


OF    INFANCY.  563 

Chancery  ;  but  the  jurisdiction  under  it  is  the  same  as  at 
common  law,  and  the  Court  can  attend  to  nothing  except 
illegal  custody,  cruelty  and  ill-usage,  (c)^ 

The  superintendent  of  the  guardianship  in  respect  of 
the  estate,  so  as  to  secure  a  due  accounting  by  the  person 
*in  possession,  is  by  action  of  account  at  law,  or  r*oo-|-i 
suit  for  account  in  equity.  As  against  the  guar- 
dian in  socage  or  the  statute  guardian,  either  of  these 
remedies  may  be  pursued;  and  also  as  against  any  person 
who  not  being  a  guardian,  has  occupied  or  taken  the  profits 
of  the  land  of  an  infant  tenant  in  socage.^  If  the  infant 
be  not  tenant  in  the  socage,  the  intruder  is  not  liable  to 
account  ^t  law,  but  will  be  compelled  to  account  in 
equity,  (d) 

The  means  of  protection  already  enumerated,  although 

(c)  Rex  V.  Greenhill,  4  A.  &  E.  624 ;  Lyons  v.  Blenkin,  Jac.  245,  254. 
{d)  Chamb.  518,  521 ;  Blomfield  v.  Eyre,  8  Beav.  250. 

^  When  an  infant  is  brought  up  on  a  habeas  corpus,  the  Chancellor  will 
not,  in  such  a  summary  proceeding,  try  the  question  of  guardianship,  or 
deliver  the  infant  into  the  custody  of  another  •,  he  will  only  deliver  the  in- 
fant from  illegal  restraint,  and  if  competent  to  form  and  declare  an  elec- 
tion, will  allow  it  to  make  such  election  :  Matter  of  Wollstonecraft,  4  Johns. 
Ch.  82;  Foster  p.  Alston,  16  How.  (Miss.)  406;  see,  also.  The  People  w, 
Mercein,  8  Paige  47,  55 ;  U.  S.  v.  Green,  3  Mason  482,  485 ;  Armstrong  v. 
Stone,  9  Gratt.  102 ;  see  People  v.  Wilcox,  22  Barb.  178. 

^  Any  stranger  or  wrongdoer  who  interferes  with  the  property  of  a 
minor,  and  receives  the  rents  and  profits  thereof,  may  be  considered  by 
the  minor  as  his  guardian,  and  held  accountable  as  such  to  him  for  the 
property  so  received :  Goodhue  v.  Barnwell,  1  Rice  Eq.  198  ;  Davis  v.  Hark- 
ness,  1  Gilman  173  ;  Ilanna  v.  Spotts,  5  B.  Monr.  362;  Drury  v.  Conner, 
I  Harris  &  Gill,  220;  Van  Epps  v.  Van  Deusen,  4  Paige  64;  Chaney  v. 
Smallweed,  1  Gill  367  ;  Wyllie  v.  Ellice,  6  Hare  505 ;  Lennox  v.  Notrebe, 
1  Hempst.  225 :  Blomfield  v.  Eyre,  8  Beav.  250 ;  and  as  a  fiduciary,  cannot 
set  up  the  Statute  of  Limitations :  Goodhue  v.  Barnwell,  ut  sup. ;  Thomas 
V.  Thomas,  25  L.  J.  Ch.  159.  But  an  executor,  having  rightful  possession 
of  the  property  of  the  infant,  cannot  be  treated  as  a  guardian  without  his 
consent;  Bibb  v.  McKinle^',  9  Porter  636. 


564  ADAMS's    DOCTRINE    OF    EQUITY. 

available  for  the  prevention  of  positive .  misconduct,  are 
inadequate  to  secure  a  proper  education  of  the  infant,  or  a 
prudent  management  of  his  estate.  And  for  these  pur- 
poses there  is  a  prerogative  in  the  Crown,  as  parens  patriwy 
to  be  exercised  by  the  Court  of  Chancery,  for  protection 
of  any  infant  residing  either  temporarily  or  permanently 
within  its  jurisdiction.^  The  possession  of  property  is  not 
essential  to  the^  existence  of  this  authority,  though  the 
want  of  it  may  create  a  practical  difficulty  in  its  exercise, 
by  incapacitating  the  Court  from  providing  for  the  infant's 
maintenance,  {e)  _ 

The  mode  of  calling  the  jurisdiction  into  operation  is  by 
filing  a  bill,  to  which  the  infant  is  a  party.  This  consti- 
tutes him  a  ward  of  Court;  and,  after  he  is  once  a  ward, 

(e)  De  Manncville  v.  De  Manneville,  10  Ves,  52-63 ;  Wellesley  v.  Wel- 
lesley,  2  Bl.  N.  S.  124 ;  Johnstone  v.  Beattie,  10  CI.  &  P.  42 ;  Re  Spence,  2 
Ph.  247. 

^  The  several  kinds  of  guardian  have,  in  this  country,  become  essentially 
superseded  in  practice  by  the  chancery  guardians,  and  guardians  appointed 
hy  the  Surrogates,  Ordinary,  or  Orphans'  Courts,  Courts  of  Probate,  or 
other  courts  of  similar  character,  having  jurisdiction  of  testamentary 
matters,  in  the  various  states.  And  still,  where  there  exists  a  Court  of 
Chancery,  the  general  jurisdiction  over  every  guardian  resides  there.  A 
testamentary  or  statute  guardian  is  as  much  under  the  superintendence  of 
the  Court  of  Chancery,  as  the  guardian  in  socage :  Matter  of  Andrews,  1 
Johns.  Ch.  99  ;  Ex  parte  Crumb,  2  Id.  439  ;  and  see  Matter  of  Nicoll,  1  Id. 
"25  ;  Preston  v.  Dunn,  25  Ala.  507.  Such  court  has  a  general  supervisory 
power  over  the  persons  and  estates  of  infants ;  and  when  any  part  of  an 
infant's  estate  is  in  litigation  there,  it  is  under  the  immediate  guardian- 
ship and  protection  of  the  Court :  Westbrook  v.  Comstock,  Walk.  Ch.  314 ; 
People  V.  Wilcox,  22  Barb.  178.  Where  an  infant  under  twelve  years  of 
age  was  married,  and  immediately  thereafter  declared  her  dissent  to  the 
marriage,  upon  application  to  chancery  by  her  next  friend,  she  was  de- 
clared a  ward  of  the  court,  and  all  conversation,  intercourse,  or  corres- 
pondence between  her  and  the  defendant  to  whom  she  had  been  married, 
was  forbidden  under  pain  of  contempt :  Aymer  v.  Roff,  3  Johns.  Ch.  49. 

See,  on  the  subject  of  the  jurisdiction  of  Chancery  over  Infants,  notes  to 
Eyre  v.  Countess  of  Shaftesbury,  2  Lead.  Cas.  Eq.  538. 


OF    INFANCY.  565 

any  subsequent  matter  may  be  determined  on  petition  or 
motion.  If  the  infant  is  in  illegal  custody,  an  order  for 
his  delivery  to  the  proper  guardian  may  be  made  on  peti- 
tion without  bill ;  (/)  and  if  the  father  is  dead,  the  appoints 
ment  of  a  guardian  and  an  allowance  for  maintenance  may 
be  obtained  in  the  same  way.  But  if  the  receiver  of  the 
estate  is  wanted,  or  a  compulsory  order  on  trustees,  or  if 
there  be  complicated  accounts,  a  bill  is  necessary,  [g) 

The  principal  incidents  of  wardship  are  three  in  num- 
ber; *^dz.:  The  ward  must  be   educated  under 
the  Court's  superintendence;  his  estate  must  be    ^         ^ 
managed  and  applied  under  the  like  superintendence;  and 
his  marriage  must  be  with  the  sanction  of  the  Court. 

1.  The  ward  must  be  educated  under  the  superintend- 
ence of  the  Court. 

The  right  of  superintendence  exists  in  every  case  of 
wardship;  and  therefore,  when  an  infant  has  been  made  a 
ward,  he  cannot  be  taken  out  of  the  jurisdiction  of  the 
Court  without  its  leave .^  But  leave  will  not  be  refused, 
if  shown  to  be  for  his  benefit,  provided  due  security  be 
given  for  his  return,  and  for  acquainting  the  Court  with 
his  situation  and  progress,  (/i) 

The  manner  in  which  the  superintendence  is  exercised 
differs  according  as  there  is  or  is  not  a  subsisting  guardian. 

(/)  Re  Spence,  2  Ph.  247. 

{g)  2  Dan.  C.  P.  ch.  39. 

(A)  Campbell  r.  Mackay,  2  M.  &  C.  31  ;  Johnstone  v.  Beattie,  10  CI.  & 
F.  42  ;  [see  remarks  on  this  case  in  Stuart  v.  Bute,  9  H.  L.  Cas.  440]  : 
Stephens  v.  James,  1  M.  &  K.  627  ;  [see  Dawson  v.  Jay,  Z  De  G.,  M.  &  G. 
764.] 

^  In  Rochford  v.  Hackman,  1  Kay  308,  a  ward  of  court  who  had  en- 
listed in  the  East  India  service,  was  ordered  to  be  discharged  on  applica- 
tion of  his  guardian,  and  notice  to  the  East  India  Company.  See  also 
Dawson  v.  Jay,  3  De  G.,  M.  «fe  G.  76-1, 


566  ADAMS's    DOCTRINE    OF    EQUITY. 

If  the  father  is  dead,  and  there  is  no  legal  or  statutory 
guardian,  or  none  who  is  able  or  willing  to  act,  a  guar- 
dian will  be  appointed,  and  a  scheme  of  education  settled 
by  the  Court.  In  settling  such  scheme  the  Court  will 
regard,  as  far  as  .possible,  the  wishes  of  the  deceased 
father.  And  it  Avill  more  especially  do  so  in  regard  to 
religion,  by  bringing  up  the  infant  in  the  creed  of  his 
family,  if  not  contrary  to  law,  and  if  he  has  not  been 
already  educated  in  another (^)^  If  the  guardian  is  resi- 
dent beyond  the  jurisdiction,  he  will  not  for  that  reason 
be  displaced  from  his  office;  but  it  will  be  an  inducement 
to  join  some  other  person  in  the  guardianship,  Avho  may 
be  responsible  to  the  Court,  (/r)^ 

(i)  Talbot  V.  Shrewsbury,  4  M.  &  C.  673 ;  Witty  v.  Marshall,  1  N.  C. 
C.  68. 

{k)  Johnstone  v.  Seattle,  10  CI.  &  F.  42  ;  Wellesley  v.  Beaufort,  2  Russ. 
1,18.     [See  Lockwood  v.  Fenton,  1  Sm.  &  GifiF.  73.] 


'  In  the  appointment  of  a  guardian  for  an  infant,  the  court  will  regard 
the  expressed  desire  of  the  deceased  parents  in  reference  to  the  religious 
education  of  the  infant:  Underbill  v.  Dennis,  9  Paige  202  ;  Graham's  Ap- 
peal, 1  Dall.  136.     See  In  re  Newberry,  L.  R.  1  Eq.  431. 

^  It  is  generally  held  in  the  United  States  that  the  rights,  powers,  and 
duties  of  a  guardian,  like  those  of  an  administrator,  are  entirely  local,  and 
cannot  be  exercised  in  other  states :  Morrell  v.  Dickey,  1  Johns.  Ch.  169  •, 
Sabin  v.  Gilman,  1  N.  H.  193  ;  Armstrong  v.  Lear,  12  Wheat.  156  ;  2  Kent's 
Comm.  227,  n. ;  see  also.  Cox  v.  Williamson,  11  Ala.  343  ;  but  see,  in  South 
Carolina,  Ex  parte  Smith,  1  Hill  Eq.  140  ;  Ex  parte  Heard,  2  Id.  54 ;  and. 
see  Townsend  v.  Kendall,  4  Minn.  412  ;  Boyd  v.  Glass,  34  Ga.  253  ;  Earl 
V.  Dresser,  30  Ind.  11.  In  some  of  the  states,  however,  there  are  statutory 
provisions  which  place  foreign  and  domestic  guardians,  to  a  greater  or  less 
degree,  on  the  same  footing.  In  the  case  of  Re  Dawson,  2  Sm.  &Giff.  199, 
it  was  held  in  England  that  the  order  of  a  Surrogate's  Court  in  New  York, 
appointing  a  guardian  to  an  infant,  the  child  of  a  British  subject,  would 
be  recognised  in  the  Court  of  Chancery  with  the  respect  due  by  the  comity 
of  nations ;  but  that  it  did  not  confer  on  the  appointee  the  character  of 
guardian  there.  This  was  the  case  of  a  child  whose  father  had  been  a 
native  of  Great  Britain,  but  naturalized  in  the  United  States,  where  he  was 
also  domiciled.     The  maternal  aunt  had  been  appointed  guardian,  in  New 


OF    INFANCY,  567 

If  there  is  a  father  or  legal  guardian  within  the  juris- 
diction able  and  willing  to  act,  the  matter  will  be  left  to 
his  direction,  subject  to  the  general  control  of  the  Court.^ 
But  if  there  be  a  difference  of  opinion  among  several 
guardians,  a  scheme  will  be  directed. (/) 

*If  the  father  or  legal  guardian  has  volun-  r*9oo-| 
tarily  relinquished  his  right,^  or  has  forfeited  it 

(Z)  Campbell  v,  Mackay,  2  M.  &  C.  31,  36. 

York,  where  the  infant's  property  was  situated.  The  child  was  brought  to 
England  by  a  paternal  aunt,  with  whom  it  resided  ;  and  the  desire  of  the 
guardian  to  compel  its  return  gave  rise  to  the  question.  In  a  subsequent 
branch  of  the  case,  Dawson  v.  Jay,  3  De  G.,  M.  &  G.  764,  the  Lord  Chan- 
cellor held,  that  the  court  could  not  compel  the  removal  of  an  infant  ward 
out  of  the  jurisdiction,  and  therefore  refused  an  application  by  the  guardian 
to  obtain  custody  of  the  child  for  that  purpose.  See,  also,  Lockwood  v. 
Fenton,  1  Sm.  &  Giff.  73,  The  subject  under  consideration  was  examined 
in  Stuart  v.  Bute,  *J  H.  L.  Cas.  440.  In  that  case  the  infant  was  a  young 
marquis  who  was  a  subject  of  the  United  Kingdom,  and  who  had  a  very 
large  property  both  in  England  and  Scotland ;  and  the  question  was  between 
the  English  and  Scotch  guardians,  as  to  which  class  the  Crown,  aspare7is 
patrice,  having  full  power  to  deal  with  the  matter,  should  assign  him.  It 
was  held  that  the  Scotch  Court  of  Session  had  not  displayed  sufficient 
consideration  for  the  disposition  which  had  been  previously  made  by  the 
English  Court  of  Chancery,  and  the  authority  of  the  latter  tribunal  was 
accordingly  upheld.  The  change  of  domicil  after  the  jurisdiction  had  at- 
tached, was  considered  to  make  no  difference.  See,  also,  in  this  case,  the 
remarks  on  Dawson  v.  Jay,  supra.  See,  moreover,  Xugent  v.  Vetzera,  L, 
K.  2  Eq.  703. 

Although  a  guardian  resides  out  of  the  state  and  has  no  property  within 
it,  equity  has  jurisdiction  to  hold  him  to  account,  and  compel  him  and  his 
sureties  to  pay  such  balance  as  may  be  found  against  him  :  Pratt  v.  Wright, 
13  Grattan  175. 

'  The  Court  will  not  discharge  a  guardian  from  his  trust,  on  his  petition, 
unless  for  good  reasons  shown.  Ex  parte  Crumb,  2  Johns,  Ch.  439.  See, 
also,  Ex  parte  De  Graffenreid,  1  Harp.  Eq.  107. 

*  See,  however,  Reg  r.  Smith,  1  Bail  Ct.  Cas.  132  ;  16  Eng.  L.  &  Eq.  221, 
andnot€;  People  r.  Mercein,  3  Hill,  399;  Mayne  v.  Baldwin,  1  Halst,  Ch. 
454.  An  agreement  for  a  separation  deed  in  which  the  father  was  to 
divest  himself  of  authority  over  his  children  will  not  be  enforced  :  Vansit- 
tart  V.  Vansittart,  2  De  G.  &  J,  249.  But  to  this  rule  there  may  be  some 
exceptions  ■,  see  Swift  r.  Swift,  34  Bear,  266. 


668  ADAMS'S    DOCTRINE     OF    EQUITY. 

by  misconduct  tending  to  the  infant's  corruption,  the  Court 
will  restrain  him  from  interfering,  and  will  appoint  some 
other  person  to  act  as  guardian  in  his  place.  Instances 
of  voluntary  relinquishment  occur  where  a  third  party 
has  given  a  benefit  to  the  infant,  on  condition  of  being 
allowed  to  appoint  a  guardian,  and  the  father  or  legal 
guardian  has  expressly  or  impliedly  assented  to  that  con- 
dition, either  by  originally  conforming  to  its  terms,  so  as 
to  alter  the  infant's  condition  in  life,  or  by  accepting  a 
benefit  under  it.  But  there  is  no  power  in  third  parties, 
independently  of  such  assent,  to  deprive  the  parent  or 
guardian  of  his  right,  by  making  a  gift  to  the  infant  on 
condition  of  its  relinquishment.  If,  however,  a  gift  is  de 
facto  made  which  will  ultimately  change  the  infant's  con- 
dition in  life,  the  necessity  of  educating  him  suitably  to 
his  expectations  may  induce  some  degree  of  interference 
by  the  Court. (m)^  Instances  of  forfeiture  by  misconduct 
occur  where  the  father  or  guardian  inculcates  vicious  and 
irreligious  principles,  or  conduct,  inconsistent  with  the 
well-being  of  society;  or  where  he  manifests  such  princi- 
ples in  his  own  conduct,  and  brings  the  infant  so  in  con- 
tactjvvith  them,  that  corruption  is  likely  to  ensue. (w)^ 

(m)  Lyons  v.  Blenkin,  Jac.  245,  255 ;  Hill  v.  Gomme,  1  Beav.  540 ;  5  M. 
&  C.  250 ;  De  Manneville  v.  De  Manneville,  10  A^es.  52,  64.         ' 

(n)  Shelley  v.  Westbrooke,  Jac.  266,  n.;  Wellesley  v.  Beaufort,  2  Kuss. 
1 ;  2  Bl.  N.  S.  124 ;  Ball  v.  Ball,  2  Sim.  35  ;  Re  Spence,  2  Ph.  247. 

'  See  note,  ante,  p.  280. 

*  These  principles  were  acted  on  in  Cowls  v.  Cowls,  3  Gilm.  435  ;  Comm. 
V.  Addicks,  2  S.  &  R.  174.     See  Swift  v.  Swift,  34  Beav.  266. 

The  Court  will  refuse  to  give  possession  of  children  to  their  father,  if  he 
has  so  conducted  himself  as  that  it  will  not  be  for  their  benefit,  or  if  it  will 
affect  their  happiness,  or  if  they  cannot  associate  with  him  without  moral 
contamination,  or  if,  because  they  associate  with  him,  others  will  shun  their 
society.  In  a  case  where  the  Court  entertained  a  strong  belief  that  a  charge 
of  an  unnatural  crime,  brought  against  a  father,  was  true,  though  he  had 


OF     INFANCY.  669 

It  is  enacted  by  a  late  statute,  entitled  "An  Act  to 
amend  the  law  relating  to  the  Custody  of  Infants,"  that 
the  Court  of  Chancery,  upon  the  petition  of  the  mother  of 
any  infant,  may  make  order  for  the  access  of  the  petitioner 
to  her  infant  children  at  such  times  and  under  such  regu- 
lations as  the  Court  shall  deem  convenient  and  just;  and 
if  such  children  shall  be  within  the  age  of  seven  years, 
may  order  them  to  be  delivered  into  the  custody  of  the 
petitioner  until  such  age.  •  But  no  mother  against  whom 
adultery  *has  been  established,  by  a  judgment  in  r*oo4^-] 
an  action  for  criminal  conversation  at  a  suit  of 
her  husband,  or  by  the  sentence  of  an  Ecclesiastical  Court, 
is  entitled  to  the  benefit  of  the  act.  (o)     It  is  also  enacted 

(o)  2  &  3  Vict.  c.  54 ;  Re  Taylor,  10  Sim  291 ;  11  Id.  178;  [see  Re  Hal- 
liday's  Est.,  17  Jur.  56.] 

been  in  fact  acquitted  thereof  upon  an  indictment,  the  Court  refused  to  per- 
mit any  sort  of  intercourse  between  him  and  them :  Anon.,  2  Sim.  N.  S. 
54 ;  Swift  V.  Swift,  34  Beav.  266. 

In  Thomas  v.  Roberts,  3  De  G.  &  Sm.  758,  the  Agapemone  Case,  a  father 
who  had  deserted  his  wife,  and  who  was  a  member  of  an  absurd  religious 
sect,  whose  tenets  the  Court  considered  of  an  injurious  tendency,  was 
refused  the  custody  of  his  child. 

Infants  of  tender  years,  however,  have  been  left  ex  necessitate  with  a 
mother,  though  her  principles  were  of  an  immoral  tendency,  and  she  was 
living  in  adultery :  Comm.  v.  Addicks,  5  Binn.  520  ;  they  were  afterwards 
removed,  however,  on  arriving  at  a  more  advanced  age  :  s.  c.  2  S.  &  R. 
174.  Mere  peculiarities  in  religious  belief  will  not  justify  the  removal  of 
children  from  their  fathers  custody:  Curtis  v.  Curtis,  5  Jur.  N.  S.  1147. 
Nor  harsh  treatment,  unless  it  is  such  as  will  injure  the  children's 
health:  Id. 

Fixed  habits  of  intemperance  constitute  a  sufficient  reason  for  the  removal 
of  a  guardian  :  Kettletas  v.  Gardner,  1  Paige  488.  So,  speculation  by  the 
guardian  with  the  husband  of  his  female  ward,  in  relation  to  her  estate,  or 
even  the  insolvency  of  the  guardian  and  one  of  his  sureties,  may  be  sufficient 
cause :  In  re  Cooper,  2  Paige  34.  On  the  other  hand,  it  is  no  ground  for 
the  removal  of  a  guardian,  that  he  has  retained  the  funds  of  his  ward, 
instead  of  investing  them,  admitting  his  liability  for  interest:  Sweet  v. 
Sweet,  Speer's  Ch.  309.  See  also  on  the  subject,  Disbrow  v.  Henshaw,  8 
Oowen  349  ;  In  re  Kennedy,  5  Paige  244. 


570  ADAMS'S    DOCTRINE     OF     EQUITY. 

by  another  statute,  entitled  "An  Act  for  the  care  and 
education  of  Infants  who  may  be  convicted  of  Felony," 
that  the  Court  of  Chancery,  on  the  application  of  any 
person  who  may  be  willing  to  take  charge  of  an  infant 
so  convicted,  and  to  provide  for  his  maintenance  and 
education,  may  assign  the  custody  of  such  infant  during 
minority,  or  during  any  part  thereof  to  the  applicant,  on 
such  terms  and  subject  to  such  regulations  as  the  Court 
may  prescribe.  And  an  order  for  that  purpose,  so  long 
as  it  shall  remain  in  force,  is  to  be  binding  on  the  father 
and  on  every  testamentary  guardian.  But  it  is  in  every 
case  to  be  one  of  the  terms  imposed,  that  the  infant  shall 
not  be  sent  beyond  the  seas,  or  out  of  the  jurisdiction  of 
the  Court.  (/?) 

2.  The  ward's  estate  must  be  managed  and  applied 
under  the  superintendence  of  the  Court. 

The  manner  of  management,  like  that  of  education, 
differs  according  to  the  circumstances  of  the  case.  If 
there  are  no  trustees  within  the  jurisdiction  able  and 
willing  to  act,  the  Court  will  appoint  a  receiver.  If 
there  are  such  trustees,  they  will  not  be  superseded,  ex- 
cept for  misconduct;  but  a  guardian  is  in  this  respect 
different  from  a  trustee,  and  his  power  of  management 
will  not  exclude  a  receiver.  (§') 

In  cases  where  a  trust  exists,  the  degree  of  authority 
as  well  as  the  manner  of  its  exercise,  will  depend  on  the 
terms  of  the  instrument  creating  it.  In  other  cases  the 
Court  is  thrown  on  its  inherent  jurisdiction ;  and  has 
authority  to  manage  the  estate  during  minority  and  to 
apply  its  proceeds  for  the  infant's  benefit ;  but  there  is 
no  inherent  power  to  dispose  of  or  alter  the  estate  itself, 

{p)  3  &  4  Vict.  c.  90. 

(j)  Gardner  v.  Blane,  1  Hare  381. 


OF    INFANCY.  571 

except  in  cases  of  election  or  partition,  where  the  dispo- 
sition is  demandable  *as  of  right  by  other  par-  r*9oc-i 
ties,(r)^  and  of  the  devolution  on  an  infant  of  a 

(r)  Garmstone  v.  Gaunt,  1  Coll.  577  ;  note  to  Gretton  v.  Hayward,  1  Sw. 
413  ;  Siuison  V.  Jones,  2  R.  &  M.  356,  374 ;  Calvert  v.  Godfrey,  6  Beav.  97, 
109  ;  supra,  Partition. 

^  Rogers  v.  Dill,  6  Hill  415  ;  but  contra.  Matter  of  Salisbury,  3  Johns. 
Ch.  347  ;  Williams  r.  Harrington,  11  Ired.  616 ;  Ex  parte  Jewett,  16  Ala. 
409  ;  Huger  v.  Huger,  3  Dessaus.  18  ;  Stapleton  v.  Langstaff,  Id.  22.  See 
William's  Case,  3  Bland  186.  In  most  of  the  states  there  are  now  statutes 
which  authorize  the  sale  of  the  infant's  estate  on  application  by  the  guar- 
dian te  the  proper  court,  where  it  is  necessary  or  proper  for  the  infant's 
benefit.  See  Garland  v.  Loving,  1  Rand.  396  ;  Matter  of  Wilson,  2  Paige 
412;  Pope  V.  Jackson,  11  Pick.  113;  Talley  v.  Starke,  6  Gratt.  339; 
Duckett  V.  Skinner,  11  Ired.  431  ;  Brown's  Case,  8  Humph.  200;  Peyton 
V.  Alcorn,  7  J.  J.  Marsh.  502 ;  Dow's  Pet.,  Walker's  Ch.  145  ;  Young  v. 
Keogh,  11  111.  642;  Ex  parte  Jewett,  16  Ala.  409;  Morris  v.  Morris,  2 
McCarter  (N.  J.)  239.  In  New  York,  the  jurisdiction  of  the  court  on  the 
sale  of  an  infant's  real  estate  is  considered  to  be  wholly  derived  from  the 
statute  of  that  state,  and  not  to  extend  to  cases  not  there  provided  for : 
Baker  v.  Lorillard,  4  Comst.  257.  The  sale  of  an  infant's  real  estate  is 
frequently  directed  by  act  of  the  legislature,  in  this  country  ;  and  there  is 
no  doubt  now,  of  the  constitutionality  of  such  acts  :  Snowhill  v.  Snowhill, 
2  Green  Ch.  20 ;  Norris  v.  Ciymer,  2  Penn.  St.  277  ;  Davis  v.  Johonnot,  7 
Mete.  388  ;  Spotswood  v.  Pendleton,  4  Call.  514 ;  Dorsey  r.  Gilbert,  11  Gill 
&  J.  87  ;  Nelson  v.  Lee,  10  B.  Monr.  495  ;  Powers  v.  Bergen,  2  Seld.  358  ; 
even  though  the  infants  be  non-residents :  Nelson  v.  Lee,  ut  supra. 

A  guardian  or  trustee  for  infants,  has.  in  general,  no  power  to  convert 
realty  into  personalty,  or  vice  versa.  Royer's  App.,  11  Penn.  St.  36  ;  Bon- 
sall's  App.,  1  Rawle  273 ;  Kaufman  v.  Crawford,  9  W.  &  S.  131  ;  Eckford 
V.  De  Kay,  8  Paige  89  ;  Sherry  v.  Sansberry,  3  Ind.  320  ;  Ex  parte  Crutch- 
field,  3  Yerg.  336 ;  White  v.  Parker,  8  Barb.  S.  C.  48  ;  Hassard  v.  Rowe, 
1 1  Id.  22.  But  it  has  been  held  that  in  case  of  imminent  necessity  the 
guardian  might  purchase  land  with  his  ward's  money  :  Bonsall's  App.,  ut 
sup. ;  Billington's  App.,  3  Rawle  55  ;  Royer's  App.,  11  Penn.  St.  36  ;  Bow- 
man's App.,  3  Watts  369  ;  though  see  Moore  v.  Moore,  12  B.  Monroe,  651. 
Permanent  improvements  are  equivalent  to  a  conversion :  Bellinger  v. 
Shafer,  2  Sandf.  Ch.  297  ;  Hassard  v.  Rowe,  11  Barb.  S.  C.  22  ;  Miller's 
Estate,  1  Penn.  St.  326.  In  Jackson  v.  Jackson,  1  Gratt.  143,  however,  an 
allowance  for  permanent  improvements  was  made,  it  being  obviously  for 
the  infant's  benefit. 


672  ADAMS's    DOCTRINE    OF    EQUITY. 

mortgaged  estate,  where  a  sale  is  the  only  protection 
against  foreclosure,  (s)  If  it  be  for  an  infant's  benefit  to 
invest  money  in  land,  and  thus  to  change  personal  into 
real  estate,  the  order  authorizing  the  investment  will  be 
coupled  with  a  declaration  that  the  land  shall  be  con- 
sidered, during  minority,  as  constructively  personal.  (^)^ 

The  statutory  powers  of  directing  conveyances  where 
estates  held  on  trust  or  mortgage,  or  subject  to  an  equity 
for  specific  performance,  or  liable  as  assets  for  payment 
of  debts,  have  devolved  on  an  infant,  have  been  already 
noticed. (w)  There  are  other  statutory  powers  which 
apply  to  the  beneficial  property  of  infants,  and  which  are 
conferred  by  a  statute,  not  confined  to  infancy  alone,  but 
providing  for  other  cases  of  incapacity,  and  entitled  "An 
Act  for  amending  the  Laws  relating  to  property  belonging 

(«)  Mondey  e.  Mondey,  1  Ves.  &  B.  223 ;  Brookfield  v.  Bradley,  Jac. 
634 ;  Davis  v.  Dowding,  2  K.  245. 

{t)  Ashburton  v.  Ashburton,  6  Ves.  6  ;  Ware  v.  Polhill,  11  Id.  257,  278  ; 
Webb  V.  Lord  Shaftesbury,  6  Madd.  100 ;  Ex  parte  Phillips,  19  Ves.  118, 
122. 

{u)  Supra,  Trust ;  Specific  Performance  ;  Mortgage  ;  Administration  of 
Assets. 

In  Sweezy  v.  Thayer,  1  Duer  (N.  Y.)  286,  where  there  was  a  sale  of  an 
infant's  real  estate  under  a  decree  of  foreclosure  on  a  mortgage,  it  was  held 
that  the  surplus  remained  real  estate,  and  would  descend  as  such  at  his 
death ;  that  he  might  elect,  on  coming  of  age,  whether  to  take  it  as  realty 
or  personalty  ;  and  that  such  surplus,  though  invested  in  personal  secu- 
rities, could  not  be  further  converted  into  personalty.  And  see,  also,  that 
where  an  infant's  realty  is  converted  by  order  of  court  or  act  of  the  legis- 
lature, its  proceeds  remain  realty  as  regards  him  and  his  heirs,  during 
minority:  Snowhill  v.  Snowhill,  2  Green  Ch.  20;  Lloyd  v.  Hart,  2  Penn. 
St.  473  ;  March  v.  Berrier,  6  Ired.  Eq.  524. 

'  See,  to  this  point,  Huger  v.  Huger,  3  Dessaus.  18  ;  Stapleton  v.  Lang- 
staff,  Id.  22;  Dorsey  v.  Gilbert,  11  Gill  &  J.  87.  See  also.  Hedges  w.  Riker, 
5  Johns.  Ch.  163 ;  Mills  v.  Dennis,  3  Id.  370 ;  Davison  v.  De  Freest,  3 
Sandf.  Ch.  456  ;  Snowhill  v.  Snowhill,  2  Green's  Ch.  20 ;  sed  vide  Roberts 
p.  Jackson,  3  Yerg.  77. 


OF    INFANCY.  573 

to  Infants,  Femes  Covert,  Lunatics,  and  Persons  of  Un- 
sound Mind."(z') 

By  the  early  clauses  of  this  statute,  provision  is  made 
for  the  admittance  of  infants,  femes  covert,  and  lunatics, 
to  copyhold  property,  and  for  raising  the  fines  payable  on 
such  admittance,  without  requiring  the  sanction  of  a  judi- 
cial order.  The  powers  conferred  by  the  subsequent 
clauses  in  the  case  of  infants  and  femes  covert,  are  to  be 
exercised  under  the  sanction  of  the  Court  of  Chancery; 
and  those  which  are  conferred  in  the  case  of  lunatics  are 
to  be  exercised,  as  we  shall  hereafter  see,  by  the  Lord 
Chancellor,  intrusted  under  the  sign  manual  with  the 
custody  of  lunatics.  The  acts  which  the  Court  of  Chan- 
cery is  thus  '^empowered  to  correct,  are  the  sur-  r*9C£^-i 
render  of  renewable  leases  belonging  to  an  infant 
ov  feme  covert,  and  the  acceptance  of  renewed  ones  in  their 
stead;  the  renewal  of  leases  which  the  infant  or  feme 
covert,  if  not  under  disability,  might  be  compelled  to  re- 
new; the  leasing  of  property  belonging  to  an  infant  in  fee 
or  in  tail,  or  for  an  absolute  leasehold  interest;  the  enter- 
ing into  agreements  on  behalf  of  an  infant  under  the  Act 
for  augmenting  the  Maintenance  of  the  Poor  Clergy  ;(ee;) 
and  the  application  for  an  infant's  maintenance,  of  the 
dividends  on  his  stock,  under  which  name  is  included 
every  fund,  annuity,  or  security  transferable  in  the  books 
of  any  company.  The  clauses  which  relate  to  lunatics 
will  be  hereafter  considered.  (:r) 

In  exercising  its  superintendence  over  a  ward's  estate, 
the  Court  will  make  a  reasonable  allowance  for  mainte- 
nance, provided  the  ward  be  entitled  absolutely  to  a 
present  income,  and  the  allowance  be  for  his  benefit.    The 

(v)  11  Geo.  4  &  1  Wm.  4,  c.  65  ;  1  &  2  Vict.  c.  62. 
(lo)  1  Geo.  1,  c.  10.  {x)  Infra,  Lunatics. 


574  ADAMS's    DOCTRINE    OF    EQUITY. 

expenditure  for  this  purpose  is  generally  confined  to  in- 
come; and  is  rarely  permittted  to  break  in  upon  capital. 
But  the  capital  may  be  applied  for  the  advancement  of  the 
child  in  life,  e.  g.,  for  binding  him  apprentice,  Or  purchas- 
ing him  a  commission  in  the  army.(^)^ 

[y)  Walker  v.  Wetherell,  6  Ves.  473;  [Re  Welch,  23  L.  J.  Ch.  344; 
Nunn  V.  Harvey,  2  De  G.  &  Sm.  301 ;  Re  Clarke,  17  Jur.  362 ;  Re  Lane, 
Id.  219  ;  William's  Case,  3  Bland.  186  ;  see  Ex  parte  Hays,  3  De  G.  &  Sm, 

485] 

^  In  general,  a  guardian  must  keep  his  expenses  on  account  of  his  ward, 
within  the  income  of  his  ward's  estate,  and  he  cannot  encroach  upon  the 
principal  for  this  purpose,  except  upon  the  order  of  the  Court,  in  such  case, 
upon  his  application:  Davis  v.  Harkness,  1  Gilm.  173;  Davis  v.  Roberts, 
1  Sm.  &  Marsh.  Ch.  543,-  Anderson  v.  Thompson,  11  Leigh  439;  Prince 
V.  Logan,  Speer's  Ch.  29;  McDowell  v.  Caldwell,  2  McCord  Ch.  43; 
Myers  v.  Wade,  6  Rand.  444  ;  Villard  v.  Chovin,  2  Strob.  Eq.  40 ;  Holmes 
V.  Logan,  3  Id.  31  ;  Hester  v.  Wilkinson,  6  Humph.  219  ;  Bybee  v.  Tharp, 
4  B.  Mon.  313;  Carter  v.  Rolland,  11  Humph.  339;  Cornwise  v.  Bour- 
gum,  2  Ga.  Dec.  15;  Frelick  v.  Turner,  26  Miss.  (4  Cushm.)  393;  Shaw 
V.  Coble,  63  N.  C.  377  ;  Beeler  v.  Dunn,  3  Head  (Tenn.)  87  ;  Gilbert  v. 
McEachen,  38  Miss.  469.  It  seems  that  increase  in  the  value  of  the  pro- 
perty of  the  infant  may  be  deemed  income,  and  be  appropriated  by  the 
guardian  to  his  support :  Long  v.  Norcom,  2  Ired.  Ch.  354.  So  a  guardian 
will  be  allowed  for  disbursements,  although  they  exceed  the  income  of  the 
ward's  estate  in  his  hands,  if  they  do  not  exceed  the  income  of  the 
whole  of  the  ward's  estate  :  Forman  v.  Murray,  7  Leigh  412.  And  where 
the  health,  or  schooling,  or  other  circumstances,  render  an  increased 
expenditure  necessary,  the  guardian  will  be  allowed  such  expenses  out  of 
the  principal  of  the  ward's  estate  :  see  Hooper  v.  Royster,  1  Munf.  119 ; 
Long  V.  Norcom,  supra ;  Ex  parte  Potts,  1  Ash.  340 ;  Ex  parte  Bostwick, 
4  Johns.  Ch.  100 ;  Haigood  v.  Wells,  1  Hill's  Eq.  59  ;  Maclin  v.  Smith,  2 
Ired.  Eq.  371  ;  Carter  v.  Rolland,  11  Humph.  339;  Caffey  v.  McMichael, 
64  N.  C.  507.  Even  the  principal  of  a  vested  legacy  will  be  broken  into 
for  the  purpose  of  educating  an  infant  legatee:  Newport  v.  Cook,  2  Ash. 
332,  And  the  rule  does  not  operate  to  prevent  an  allowance  for  permanent 
improvements  of  the  real  estate  of  the  ward  by  the  guardian  out  of  the 
principal  of  the  personal  estate:  Jackson  v.  Jackson,  1  Gratt,  143;  see 
ante,  p,  284,  and  note. 

Moreover,  although  a  guardian  has  no  right  to  expend  the  principal,  yet 
if  he  purchases  goods  on  account  of  the  ward,  the  person  of  whom  he  pur- 
chases is  not  bound  to  see  that  they  are  paid  for  out  of  the  profits  of  the 
estate:  Broadus  v.  Rosson,  3  Leigh  12. 


OF    INFANCY.  575 

The  authority  of  the  Court  to  allow  maintenance  is  dis- 
tinct from  *its  authority  where  maintenance  is  already 
given,  whether  the  gift  be  made  as  an  express  benefit  to 
the  child's  parent,  or  as  a  benefit  to  the  child  out  of  a 
stranger's  estate,  or  as  one  of  the  trusts  under  a  contract 
of  settlement.  In  these  cases,  the  authority  of  the  Court 
is  to  eifectuate  the  gift,  and  to  allow  maintenance,  if  di- 
rected, because  it  is  given  by  the  donor.  In  the  cases 
which  we  are  now  considering,  it  is  an  authority  to  allow 
maintenance  out  of  the  income  merely  because  it  belongs 
to  the  infant,  and  because  such  an  application  is  for  his 
benefit ;  and  it  will  accordingly  be  exerted  though  no 
maintenance  *or  a  less  maintenance  be  directed  r*9n'-i 
by  the  gift,  or  even  though  there  be  an  express 
direction  to  accumulate.  (0) 

In  order  to  obtain  an  allowance  for  maintenance,  it 
must  be  shown  that  there  is  a  present  income  belonging 
absolutely  to  the  infant,  and  that  the  allowance  will  be 
for  his  benefit. 

There  must  be  a  present  income  belonging  absolutely 
to  the  infant.  It  is  not,  however,  essential  to  a  compli- 
ance with  this  rule  that  the  income  should  belong  abso- 
lutely to  the  individual  infant.  It  is  sufficient  if  it  be- 
longs absolutely  to  a  class,  all  of  whom  can  be  collected 
before  the  Court,  and  may  be  equally  benefited  by  the 
application.  But  if  persons,  not  in  esse,  may  become  en- 
titled, it  is  not  sufficient  that  the  parties  before  the  Court 
are  presumptively  eutitled  at  the  time ;  for  none  of  them 
may  be  eventually  entitled ;  and  the  effect,  therefore,  of 
an  order  for  maintenance  out  of  the  fund,  may  be  to 
maintain  one  person  out  of  the  property  of  another,  {a) 

(2)  Stretch  v.  Watkins,  1  Mad.  253. 

[a)  Ex  parte  Keble,  11  Ves.  606  ;  Turner  r.  Turner,  4  Sim,  430;  Can- 
nings V.  Flower,  7  Id.  523 ;  Marshall  r.  HoUoway,  2  Sw.  432,  436. 


576  ADAMS's    DOCTRINE    OF    EQUITY. 

The  allowance  must  be  for  the  infant's  benefit.  If, 
therefore,  there  be  two  funds,  out  of  either  of  which 
maintenance  might  be  given,  it  will  be  directed  out  of  the 
one  which  is  most  beneficial  to  him.((5>)  And,  on  the  same 
principle,  where  -the  infant  is  living  with  his  father,  or, 
after  the  father's  decease,  with  the  mother,  remaining  un- 
married, maintenance  will  not  be  allowed,  if  such  father 
or  mother  be  of  ability  to  maintain  him,  e.  g.,  to  maintain 
him  suitably  to  his  expectations,  and  according  to  the  pa- 
rent's condition  in  life,  without  injury  to  his  other  child- 
ren, (c)^ 

(6)  Bruin  v.  Knott,  1  Ph.  572. 

(c)  Andrews  v.  Partington,  3  B.  C.  C.  60 ;  Hoste  v.  Pratt,  3  Ves.  730 ; 
Buckworth  v.  Buckworth,  1  Cox  80 ;  Jervoise  v.  Silk,  Coop.  52 ;  Stocken 
V.  Stocken,  4  M.  &  C.  95 ;  Thompson  v.  Griffin,  Cr.  &  P.  317. 


1  In  England,  by  statute  23  &  24  Vict.,  c.  145,  I  26,  trustees  for  infants 
may  apply  the  whole  of  the  income  of  the  trust  fund  for  maintenance, 
although  there  is  another  fund  provided  for  the  purpose,  or  another  person 
bound  to  provide.  For  a  recognition  and  support  of  the  English  doctrine 
in  respect  of  a  father-guardian'-B  exclusive  personal  liability  for  main- 
tenance, see  Walker  r.  Crowder,  2  Ired.  Ch.  478  ;  Booth  v.  Sineath,  2  Strob. 
Eq.  31 ;  Chapline  v.  Moore,  7  Monr.  173  ;  Myers  v.  Myers,  2  McCord's  Ch. 
255 ;  Ellerbe  v.  The  Heirs  and  Legatees  of  Ellerbe,  1  Speer's  Ch.  328 ; 
Dupont  V.  Johnson,  1  Bailey's  Eq.  279 ;  Van  Valkinburgh  v.  Watson,  13 
Johns.  480;  Addison  ».  Bowie,  2  Bland  Ch.  606;  Jones  v.  Stopkett,  Id. 
409,  431 ;  Cruger  v.  Heyward,  2  Dessaus.  94 ;  Ilarland's  Accounts,  5 
Rawle  323  ;  Matter  of  Kane,  2  Barb.  Ch.  375 ;  Beathea  v.  McColl,  5  Ala. 
312 ;  Sparhawk  v.  Buell,  9  Verm.  41  ;  Walker  v.  Crowder,  2  Ired.  Eq.  478 ; 
Morris  v.  Morris,  2  McCarter  (N.  J.)  239 ;  though  this  would  not  apply, 
it  seems,  to  a  step-father  :  Gay  v.  Ballon,  4  Wend.  403  ;  Freto  v.  Brown,  4 
Mass.  675  ;  see  Booth  v.  Sineath,  2  Strob.  Eq.  31.  For  cases  of  a  mother's 
obligation,  see  Matter  of  Bostw.ick,  4  Johns.  Ch.  100;  Wilkes  u.  Rogers,  6 
Johns.  566 ;  Heyward  v.  Cuthbert,  4  Dessaus.  445 ;  Thompson  v.  Brown, 
4  Johns.  Ch.  645.  Indeed,  it  would  seem  that  the  obligation  to  maintain 
does  not  extend  to  the  mother  when  the  children  have  an  ample  estate :  see 
Hughes  V.  Hughes,  1  Brown's  Ch.  C.  387  ;  Whipple  v.  Dow,  2  Mass.  415 ; 
Dawes  v.  Howard,  4  Mass.  97;  Matter  of  Bostwick,  4  Johns.  Ch.  100; 
Heyward  v.  Cuthbert,  4  Dessaus.  445 ;  Douglas  v.  Andrews,  12  Beav.  310 ; 
Bruin  v.  Knott,  1  Phillips  573 ;  Anderton  v.  Yates,  5  De  G.  &  Sm.  202. 


OF    INFANCY.  577 

The  manner  of  maintenance  is  by  allowing  a  gross 
annual  sum  proportioned  to  the  age  and  rank,  and  to  the 
fortune  *of  the  infant,  without  inquiring,  unless  r-^noQ-i 
on  special  grounds,  into  the  details  of  expendi-  '-  -■ 
ture.  And  in  making  such  allowance,  the  principle  of 
looking  to  the  infant's  benefit  may  authorize  an  extension 
bej^ond  what  is  necessary  for  his  personal  maintenance  ; 
e.  ff.,  if  he  be  an  eldest  child,  and  have  brothers  or 
sisters  unprovided  for,  because  it  is  more  for  his  benefit 
that  they  should  be  brought  up  respectably,  than  that 
money  should  be  accumulated  for  himself.  (</) 

If  moneys  have  been  already  expended  on  his  main- 
tenance by  a  stranger,  an  allowance  may  be  made  for 
such  past  maintenance  proportioned  to  the  amount  expend- 
ed, and  commencing  from  the  period  when  the  property 
first  vested.  But  an  allowance  for  past  maintenance  will 
not  be  made  to  the  father,  unless  special  grounds  be 
shown,  (e)^ 

{d)  Wellesley  c.  Beaufort,  2  Russ.  1,  28. 

(e)  Re  Mary  England,  1  R.  &  M.  499  ;  Ex  parte  Bond,  2  M.  &  K.  439  ; 
Chaplin  v.  Chaplin,  3  P.  AVms.  368  5  Bruin  v.  Knott,  1  Ph.  572. 

And  the  rule  is  being  relaxed  in  this  country  as  to  the  father:  see  New- 
port V.  Cook,  2  Ashm.  332 ;  Matter  of  Kane,  2  Barb.  Ch.  375. 

When  the  father  is  unable  to  support  the  infant,  the  court  will  make  an 
allowance  for  its  maintenance  :  Rice  v.  Tonnele,  4  Sand.  Ch.  571 ;  Matter 
of  Burke,  Id.  617  ;  Corbin  v.  Wilson,  2  Ashm.  178  ;  Newport  v.  Cook,  Id. 
337;  Beathea  v.  McColl,  5  Ala.  312;  Watts  v.  Steele,  19  Id.  656  ;  Carmi- 
chael  I*.  Hughes,  6  Eng.  L.  &  Eq.  71.  In  some  cases,  allowances  for  past 
maintenance  have  been  made  to  the  father  :  Corbin  v.  Wilson ;  Newport  v. 
Cook  ;  Carmichael  r.  Hughes,  ut  sup.  So  of  the  mother :  Matter  of  Bost- 
wick,  4  Johns.  Ch.  100  ;  Bruin  v.  Knott,  1  Phill.  573.  But  in  England, 
it  is  said  that  the  father  cannot  have  past  maintenance,  except  in  very 
special  circumstances  :  Carmichael  v.  Hugh,  ut  supr.  A  direct  benefit  to 
the  father,  not  maintaining  the  child,  will  not  be  allowed  :  Re  Stables,  21 
L.  J.  Ch.  620. 

^  As  to  allowance  for  past  maintenance,  see  Matter  of  Kane,  2  Barb. 
Ch.  375. 

37 


578  ADAMS's    DOCTRINE    OF    EQUITY. 

3.  The  "ward's  marriage  must  be  with  the  sanction  of 
the  Court. 

In  order  to  obtain  such  sanction,  the  Court  must  be 
satisfied  that  the  marriage  is  a  proper  one ;  and,  if  the 
ward  be  a  female^  that  a  proper  settlement  is  made.(/)^ 
The  marriage  of  an  infant  ward,  without  permission  of 
the  Court,  is  a  criminal  contempt  in  all  parties  except  the 
infant,  and  is  punishable  by  commitment  during  pleasure. 
If  the  infant  be  a  female,  the  husband  will  be  compelled, 
by  imprisonment,  to  make  a  proper  settlement  of  her 
property ;  and  will  be  excluded,  either  wholly  or  in  pro- 
portion to  his  criminality,  from  deriving  any  personal  be- 
nefit out  of  his  wife's  fortune,  so  far  as  can  be  done 
without  injury  to  her.(^)'^  If  the  ward  has  attained 
twenty-one,  the  marriage  is  not  a  contempt ;  but  so  lon^ 
as  her  property  continues  under  the  control  of  the  Court, 
r*28Ql  ^^^  ^^^  retain  an  ^equity  for  a  settlement,  dis- 
chargeable only  by  her  personal  consent  in 
Court.  (^^) 

The  jurisdiction  to  settle  the  estate  of  a  female  infant 

(/)  Halsey  v.  Halsey,  9  Ves.  471 ;  Long  v.  Long,  2  S.  &  S.  119. 

[g)  Ball  V.  Coutts,  1  Ves.  &  B.  292  ;  Re  Walker,  LI.  &  G.  299  ;  Hodgens 
V.  Hodgens,  4  CI.  &  F.  323  •,  Birkett  v.  Hibbert,  3  M.  &  K.  227  ;  Kent  v. 
Burgess,  11  Sim.  361. 

{gg)  Ball  v.  Coutts,  1  Ves.  &  B.  292,  300 ;  Long  v.  Long,  2  S.  &  S.  119  ; 
Auston  V.  Halsey,  2  Id.  123  n. ;  Hobson  v.  Ferraby,  2  Coll.  412. 

^  It  is,  perhaps,  the  duty  of  a  guardian  to  apply  to  the  court  to  authorize 
the  marriage  of  his  female  ward,  if  she  be  "a  ward  of  the  court :"  Shutt 
».  Carlofis,  1  Ired.  Ch.  232,  241.  In  Tabb  v.  Archer,  3  Hen.  &  Munf.  399, 
it  was  held,  that  the  marriage  of  infants  or  wards  is  entrusted  by  law  to 
the  father  or  guardian  ;  and,  consequently,  settlements  made  by  infants 
through  the  father  or  guardian  are  binding. 

'  This  rule  will  not  be  applied  with  strictness  where  the  husband  was 
ignorant  of  the  fact  that  his  wife  was  a  ward  :  Richardson  v.  Merrifield,  4 
DeG.  &Sm.  161. 


OF    INFANCY.  579 

is  not  an  infringement  of  the  rule  against  disposing  of  an 
infant's  property ;  for  it  is  confined  to  her  personal  estate 
in  possession,  which  if  no  settlement  were  made,  would 
belong  absolutely  to  the  husband;  and,  therefore,  the 
settlement  made  is  in  truth  his  settlement,  and  not  her 
own.  There  is  no  jurisdiction  to  settle  her  real  estate, 
or  personal  estate  to  which  she  is  entitled  for  her  separate 
use.  (A) 

In  addition  to  the  general  jurisdiction  over  the  mar- 
riage of  wards,  the  Court  of  Chancery  has  a  special  au- 
thority under  the  Marriage  Act  to  appoint  a  guardian  to 
give  consent  to  an  infant's  marriage,  when  the  father  is 
dead,  and  there  is  no  guardian  and  no  mother  unmarried ; 
and  also  an  authority  to  give  such  consent,  when  the 
father  is  non  compos,  or  the  guardian  or  mother  is  non 
compoB  or  beyond  seas,  or  unreasonably  or  from  undue 
motives  withholds  consent.  (/)  And  by  the  same  act  it  is 
enacted,  that  where  the  marriage  of  an  infant  by  license 
has  been  procured  by  a  party  to  the  marriage  by  a  wil- 
fully false  oath,  or  the  like  marriage  by  banns  has  been 
procured  by  such  party,  knowing  that  it  was  without 
consent  of  the  parent  or  guardian,  and  having  knowingly 
procured  the  undue  publication  of  banns,  the  Court  of 
Chancery,  on  information  of  the  Attorney-General,  at  the 
relation  of  the  parent  or  guardian,  may  declare  a  forfeiture 
of  any  interest  which  the  offending  party  has  obtained  by 
the  marriage,  and  may  secure  such  interest  for  the  inno- 
cent party,  and  the  issue  of  the  marriage;  or  if  both 
parties  are  guilty,  may  secure  it  for  the  issue,  with  a 

(A)  Milner  r.  Harewood,  18  Ves.  259  ;  Simson  r.  Jones,  2  R.  «fe  M.  365  ; 
Saville  r.  Saville,  2  Coll.  721 ;  [Field  v.  Moore,  25  L.  J.  Ch.  66.] 
(i)  4  Geo.  4  c.  76,  s.  16  and  17 ;  Ex  parte  J.  C,  3  M.  &  C.  471. 


^80  ADAMS's    DOCTRINE    OF    EQUITY. 

r*0Qn-i    discretionary  provision  for  *the  offending  parties, 
having  regard  to  the  benefit  of  the  issue  of  that 
or  of  any  future  marriage.  (^-) 

The  jurisdiction  to  protect  persons  under  mental  inca- 
pacity is  of  an  analogous  origin  with  that  for  protection 
of  infants  ;(l)  and  extends  in  like  manner  to  all  persons, 
whether  subjects  of  the  Crown  or  not,  whose  persons  or 
property  are  within  the  local  limits  of  the  jurisdiction,  (my 
The  persons  for  whose  benefit  it  exists  are  divided  into 
two  classes,  viz. :  idiots  who  have  had  no  glimmering  of 
reason  from  their  birth,  and  are,  therefore,  by  law  pre- 
sumed never  likely  to  attain  any;"  and  lunatics,  or  persons 
of  unsound  mind,  who  have  had  understanding  but  have 
lost  the  use  of  it,  either  with  or  without  occasional  lucid 

[k)  4  Geo.  4,  c.  76,  s.  23,  24,  25  ;  Attorney-General  v.  Mullay,  4  Russ. 
319 ;  s.  c.  7  Beav.  451 ;  Attorney-General  v.  Sever,  1  Coll.  313. 

(l)  Sherwood  v.  Sanderson,  19  Yes.  280 ;  Nelson  v.  Duncomb,  9  Beav. 
211. 

(m)  Re  Bariatinski,  1  Ph.  375. 

^  The  care  and  custody  of  the  persons  and  estates  of  lunatics  are  provided 
for  in  many  of  the  states  by  local  statutes.  And  the  decisions  cited  in  the 
subsequent  notes  upon  this  branch  must  be  taken,  in  part,  as  subject  to  this 
remark,  and  introduced  merely  as  instances  of  analogy  to  the  doctrines  of 
the  text.  See  on  the  subject  of  Chancery  jurisdiction  under  this  head, 
L'Amoureux  t?.  Crosby,  2  Paige  423 ;  Matter  of  Wendell,  1  Johns.  Ch. 
600 ;  Gorham  v.  Gorham,  3  Barb.  Ch.  24  ;  Naylor  v.  Naylor,  4  Dana  343  ; 
Coleman's  Case,  4  Hen.  &  Munf.  506  ;  Warden  r.  Eichbaum,  14  Penn.  St. 
127  ;  Hinchman  ».  Bfichie,  Bright  N.  P.  143 ;  Dowell  v.  Jacks,  5  Jon.  Eq. 
417. 

•  A  person  deaf  and  dumb  from  his  birth,  is  not,  on  that  account,  to  be 
deemed  non  compos :  though  such,  perhaps,  may  be  the  legal  presumption, 
until  his  mental  capacity  is  proved  on  examination  for  that  purpose  :  Brower 
p.  Fisher,  4  Johns.  Ch.  441 ;  see,  also,  Christmas  t;.  Mitchell,  3  Ired.  Ch. 
535,  the  question  need  not  be  submitted  to  a  jury  :  Sproyer  v.  Richmond, 
16  Ohio  St.  455.  So  of  a  person  deaf,  dumb,  and  blind,  without  other 
proof  of  mental  incapacity  :  Re  Biddulph's  and  Poole's  Trust,  5  De  G.  & 
8m.  469. 


OF    IDIOCY    AND    LUNACY.  581 

intervals,  and  by  reason  of  its  loss  have  become  incapable 
of  managing  their  affairs,  (w)^  The  jurisdiction  in  idiocy  is 
of  little  practical  importance,  as  it  rarely  happens  that  any 
one  is  found  to  be  an  idiot  a  nativitate.  But  the  jurisdic- 
tion in  lunacy  is  in  constant  exercise. 

The  similarity  of  principle  between  the  jurisdictions  in 
infancy  and  lunacy,  would  lead  us  to  anticipate  their  ex- 
ercise through  the  same  channel  and  in  the  same  form  of 
procedure ;  viz.,  through  the  Court  of  Chancery  in  a  re- 
gular suit.  In  this  respect,  however,  a  material  distinc- 
tion exists.  The  jurisdiction  in  lunacy  is  exercised,  not 
by  the  Court  of  Chancery  in  a  regular  suit,  but  by  the 
Lord  Chancellor  personally  on  petition ;  and  the  appeal, 
if  his  order  be  erroneous,  is  to  the  King  in  council,  and 
not  to  the  House  of  Lords.  The  origin  of  this  distinc- 
tion seems  referable  to  the  fact  that  the  Crown,  in  the 
event  of  idiocy  or  lunacy,  has  not  a  mere  authority  to  pro- 
tect, but  an  actual  interest  in  the  land  of  the  idiot  or 
lunatic,  determinable  on  his  *recovery  or  death,  r^oqi-i 
If  the  owner  is  an  idiot,  the  profits  are  applied  as 
a  branch  of  the  revenue,  subject  merely  to  his  requisite 
maintenance ;  if  he  is  a  lunatic,  they  are  applied  on  trust 

(n)  2  Steph.  Bl.  529-531. 

^  It  is  not  every  case  of  mental  weakness  which  will  authorize  the  Court 
of  Chancery  to  exercise  the  power  of  appointing  a  committee  of  the  person 
and  estate.  To  justify  its  exercise,  the  mind  of  the  individual  must  be  so 
far  impaired  as  to  be  reduced  to  a  state,  which  as  an  original  incapacity, 
would  have  constituted  a  case  of  idiocy  :  Matter  of  Morgan,  7  Paige  236. 
Upon  an  inquest  of  lunacy,  the  finding  of  the  jury  that  the  party  "  is  in- 
capable of  managing  his  afifairs,  or  of  governing  himself,  in  consequence 
of  mental  imbecility  or  weakness,"  is  not  sufficient.  They  should  find  him 
to  be  of  unsound  mind:  Id. ;  see  also,  Matter  of  Mason,  3  Edw.  Ch.  380 ; 
Matter  of  Arnhout,  1  Paige  497.  The  only  legal  test  of  insanity  is  de- 
lusion, and  this  consists  in  a  belief  of  facts  which  no  rational  person 
would  believe  :  Matter  of  Forman,  54  Barb.  (N.  Y.)  274. 


582  ADAMS's    DOCTRINE    OF    EQUITY. 

for  his  support,  and  the  surplus  is  to  be  accounted  for  to 
himself  or  his  representatives,  (o)  In  either  case  there 
is  an  interest  vested  in  the  Crown,  and  requiring  for  its 
administration  a  special  grant.  The  duty  of  such  admin- 
istration is  committed  by  special  warrant  to  an  officer  of 
the  Crown,  who  is  usually,  though  not  necessarily,  the 
person  holding  the  Great  Seal.  By  virtue  of  this  warrant 
the  custody  of  the  estate  and  person  is  afterwards  granted 
to  committees,  whose  conduct  is  superintended  by  the 
Chancellor.  But  it  is  said  that  the  subsequent  superin- 
tendence depends  on  the  authority  of  the  Great  Seal,  and 
not  on  the  special  warrant,  and  that  if  the  warrant  were 
to  any  other  officer,  his  authority  would  cease  with  the 
appointment  of  committees.  (j»)^ 

The  existence  of  a  vested  interest  in  the  Crown,  intro- 
duces also  the  additional  distinction  that  the  mere  lunacy 
does  not  originate  the  jurisdiction ;  but  that  it  must  be 
first  inquired  of  by  a  jury,  and  found  of  record,  in  accord- 
ance witji  the  rule  of  law  wherever  a  right  of  entry  is 
alleged  in  the  Crown.^ 

In  cases  where  the  estate  has  been  very  small,  and  the 
lunatic  has  been  subject  to  the  jurisdiction  as  party  to  a 
suit,  directions  have  been  given  for  the  management  of 
his  property  and  for  a  fit  allowance  for  his  maintenance 

(o)  Steph.  Bl.  529-531. 

{p)  2  Story  on  Eq.,  s.  1336,  and  notes ;  Id.  s.  1362-1365  ;  Oxenden  v. 
Lord  Compton,  2  Ves.  Jr.  69,  71 ;  4  B.  C.  C.  231 ;  Ex  parte  Grimstone, 
Amb.  706;  Re  Fitzgerald,  2  Sch.  &  L.  431 ;  Johnstone  v.  Seattle,  10  CI. 
&  F.  42, 120 ;  [Dowell  v.  Jacks,  5  Jones  Eq.  417.] 

^  But  where  persons  of  unsound  mind,  not  found  lunatics  by  inquisition, 
are  entitled  to  property  which  is  in  or  under  the  administration  of  the 
Court  of  Chancery,  applications  relating  thereto  may  be  entertained  by 
the  Court  in  its  ordinary  jurisdiction. 

"  See  Matter  of  Runey  Dey,  1  Stockt.  181. 


OF    IDIOCY    AND    LUNACY.  583 

without  requiring  an  inquisition.  (5')^  And  by  a  recent 
statute  it  is  enacted,  that  where  any  person  not  found 
lunatic  by  inquisition  has  been  detained  under  the  pro- 
visions of  the  *Lunacy  Acts,  the  Lord  Chancellor  r*0Q9-i 
may  direct  an  inquiry  into  his  case,  and  on  a 
report  that  he  is  a  lunatic  may  appoint  guardians  of  his 
person  and  estate,  and  direct  an  application  of  the  in- 
come, (r)  The  regular  course,  however,  is  to  issue  a 
commission  under  the  Great  Seal  in  the  nature  of  a  writ 
de  lunatko  inquirendo,  to  ascertain  whether  the  party  is 
of  unsound  mind.  The  granting  of  such  commission  is 
discretionary  with  the  Chancellor,  who  in  exercising  his 
discretion  will  look  solely  to  the  lunatic's  benefit;  and 
will  not  on  the  one  hand  grant  a  commission  merely 
because  lunacy  is  shown  to  exist,  nor  refuse  it  on  the 
other  because  the  motives  of  the  applicant  are  sus- 
picious. (5) 

The  proceedings  under  the  commission  are  regulated 
by  statute.  (^)^  Their  general  outline  is,  that  a  jury  is 
empannelled  and  sworn;  the  witnesses  and  the  supposed 

(?)  Gillbee  v.  Gillbee,  1  Ph.  121 ;  Nelson  ».  Duncombe,  9  Beav.  211 ; 
Sherwood  r.  Sanderson.  19  Ves.  280. 

(r)  8  &  9  Vict.  c.  100,  s.  95,  98 ;  Orders  of  Dec.  1845. 

(s)  Ex  parte  Tomlinson,  1  Ves.  &  B.  57  ;  Re  J.  B.,  1  M.  &  C.  538 ;  Re 
Whittaker,  4  Id.  441 ;  Re  Webb,  2  Ph.  10 ;  Re  Nesbitt,  Id.  245. 

(0  3  &  4  Wm.  4,  c.  36 ;  5  &  6  Vict.  c.  84,  and  8  &  9  Vict.  c.  100,  s.  2. 
[See  also,  16  &  17  Vict.  c.  70 ;  25  &  26  Vict.  c.  36  ;  and  c.  111.] 

*  So  the  Court  may  always,  in  a  proper  case,  extend  its  protection  to  the 
property  of  the  lunatic  before  inquest:  Owing's  Case,  1  Bland  Ch.  370, 
373 ;  Post  V.  Mackall,  3  Id.  486 ;  Matter  of  Wendell,  1  Johns.  Ch.  600 ; 
Matter  of  Runey  Dey,  1  Stockt.  181. 

'  In  New  York^.  the  Court  of  Chancery  has  the  entire  jurisdiction  over 
cases  of  idiocy  and  lunacy,  and  the  manner  in  which  the  question  of  lunacy 
shall  be  tried  is  discretionary  with  the  Court.  The  most  satisfactory  mode, 
is  said  to  be  by  issue  made  up  and  prepared  for  trial  under  the  direction  of 
that  Court:  Matter  of  Wendell,  1  Johns.  Ch.  600. 


584  ADAMS'S     DOCTRINE     OF     EQUITY. 

lunatic,  if  he  thinks  fit  to  be  present,  are  examined  ;^  and 
the  inquisition  is  engrossed,  and  after  signature  by  the 
commissioners  and  jury,  is  returned  into  Chancery.  If 
there  be  misbehavior  in  executing  the  inquisition,  or  if 
the  return  be  insufficient  at  law,  the  inquisition  may  be 
quashed  and  a  new  commission  issued.  If  the  return 
untruly  finds  the  party  lunatic,  it  may  be  traversed  by 
himself  or  by  any  one  claiming  under  a  contract  with 
him;  if  it  untruly  finds  him  of  sound  mind,  a  writ  of 
melius  inquirendum  may  be  issued  by  the  Crown,  (m)  If 
the  lunatic  subsequently  recover,  the  commission  may  be 
superseded;  but  for  this  purpose  the  lunatic  must  in 
general  be  personally  examined,  and  his  sanity  fully  estab- 
lished, (z;)^ 

(tt)  Ex  parte  Roberts,  3  Atk.  6  ;  Ex  parte  Hall,  7  Ves.  261  ;  Re  Holmes, 
4  Russ.  182  ;  Re  Bruges,  1  M.  &  C.  278. 

[v)  Ex  parte  Holyland,  11  Ves.  10;  Re  Gordon,  2  Ph.  242. 

*  It  is  the  privilege  of  a  party  against  whom  a  commission  of  lunacy  is 
issued  to  be  present  at,  and  to  have  notice  of  its  execution  :  Matter  of  Tracy, 
1  Paige  Ch.  580 ;  Matter  of  Whitenack,  2  Green  Ch,  253  ;  Hinchman 
V.  Ritchie,  Bright.  N.  P.  144  ;  Case  of  Covenhoven,  Saxton  19.  But  see 
Medlock  v.  Cogburn,  1  Rich  Ch.  477.  Though  the  fact  of  notice  does  not 
appear  on  the  face  of  the  proceedings,  yet  they  cannot  for  that  reason  be 
treated  as  a  nullity  in  a  collateral  proceeding  after  confirmation  :  Willis  v. 
Willis,  12  Penn.  St.  159. 

In  Ex  parte  Richards,  16  Jur.  508,  parties  interested  under  a  settlement 
executed  ten  years  previously,  were  allowed  to  attend  a  commission,  the 
object  of  which  was  to  carry  back  the  finding  thirty  years. 

■^  On  proof  that  the  lunatic  had  recovered  his  senses,  a  commission  of 
1  unacy  was  superseded  :  Ex  parte  Drayton,  1  Dessaus.  144.  On  petition  by 
a  lunatic  to  supersede  a  commission,  the  Court  will  direct  an  inquiry,  and 
report  by  a  Master,  as  to  the  recovery,  or  direct  the  lunatic  to  be  brought 
into  Court,  to  be  examined  by  the  Chancellor :  Matter  of  Hanks,  3  Johns. 
Ch.  567.  Or  he  may  traverse  the  inquisition,  or  have  the  question  tried 
on  a  feigned  issue  :  Matter  of  McClean,  6  Johns.  Ch.  440.  And  where  the 
Chancellor  is  satisfied  that  one  found  to  be  a  lunatic  has  so  far  recovered 
his  reason,  as  to  be  capable  to  dispose  of  his  estate  by  will,  he  has  power  to 
suspend  proceedings  against  him  partially,  so  as  to  enable  him  to  make  a 


OF    IDIOCY    AND    LUNACY.  585 

The  right  of  traversing  the  inquisition  is  conferred 
by  *statute.(2(;)^  By  the  common  law,  where  a  r.^^^^^ 
direct  title  of  freehold  appeared  in  the  Crown  by  ^  ^ 
matter  of  record,  the  subject  was  put  to  his  petition  of 
right,  and  could  not  interplead  with  the  King,  either  by 
traversing  the  King's  title,  or  by  setting  up  in  avoidance 
a  title  of  his  own ;  but  he  is  now  enabled  to  traverse 
the  inquisition  and  return,  on  obtaining  leave  by  petition 
to  the  Great  Seal.(:zr)  The  proviso  requiring  leave  from 
the  Great  Seal,  has  occasioned  doubts  whether  such  leave 
is  not  discretionary  with  the  Court.     But  it  is  determined 

(w)  34  Edw.  3  ;  36  Edw.  3,  c.  13  ;  8  Hen.  6,  c.  16 ;  18  Hen.  c.  6  ;  1  Hen. 
8,  c.  8 ;  2  &  3  Edw.  6,  c.  8  ;  6  Geo.  4,  c.  53. 

(x)  2  Madd.  C.  P.  854 ;  Eq  parte  Lord  Gwydir,  4  Mad.  281. 

will :  Matter  of  Burr,  2  Barb.  Ch.  208.  Where  a  dissolution  of  a  partner- 
ship had  been  decreed  in  consequence  of  the  lunacy  of  one  of  the  partners, 
and  large  sums  had  been  paid  into  Court  on  the  separate  account  of  the 
lunatic  in  respect  of  his  share  of  the  capital  and  profits  of  the  business,  the 
Lord  Chancellor,  being  satisfied  subsequently  of  the  complete  recovery  of 
the  lunatic,  ordered  the  whole  fund  to  be  paid  out  to  him  :  Leaf  v.  Coles, 
1  De  G,,  M.  &  G.  417. 

^  It  is  a  matter  of  right  that  a  person  found  a  lunatic  under  an  inqui- 
sition, shall,  if  desirous,  have  a  traverse  of  the  inquisition :  Ex  parte  Love- 
day,  1  De  G.,  M.  &  G.  275  ;  Re  Cumming,  Id.  537  ;  and  so,  it  seems,  as  to 
any  party  interested  :  Re  Cummings,  ut  supr.  The  Lord  Chancellor  has, 
nevertheless,  a  discretion  to  exercise,  upon  the  application  for  the  writ 
being  made  to  him,  as  to  whether  it  ought  to  issue  in  the  particular  case. 
But  the  court  will  not,  in  exercising  the  discretion,  enter  into  the  question 
whether  the  lunacy  was  or  was  not  proved  before  the  jury,  but  will  merely 
ascertain  by  a  personal  examination  of  the  lunatic,  whether  he  is  capable 
of  volition  in  the  matter,  and  really  desires  a  traverse.  The  court  would 
not,  for  instance,  permit  a  traverse  in  a  case  of  raving  madness.  If  the 
court,  upon  the  examination,  entertains  a  doubt  as  to  the  existence  of  such 
a  desire  on  the  part  of  the  lunatic,  it  will,  perhaps,  look  to  other  matters 
in  forming  its  determination ;  such  as  the  persons  applying  for  the  com- 
mission ;  and  by  whom  the  lunatic  was  surrounded,  and  what  were  the 
views  and  objects  of  the  parties  applying:  Re  Cumming,  16  Jur.  483  ;  1 
De  G.,  M.  &  G.  537. 


586  ADAMS'S    DOCTRINE    OF    EQUITY. 

that,  if  the  applicant  show  a  sufficient  interest,  the  tra- 
verse is  matter  of  right,  and  may  be  claimed  as  such  either 
by  the  alleged  lunatic  himself,  if  capable  of  volition  and 
attending  personally  to  express  his  wish,  or  by  any  one 
interested  under  si  contract  with  him.  If  there  be  a  rea- 
sonable ground  of  traverse,  the  Court  may  in  its  discre- 
tion allow  funds  out  of  the  estate  for  trying  it,  and  may 
in  the  meantime  suspend  any  further  interference.  (^) 

On  a  return  of  Tion  compos  being  made,  and  either  sub- 
mitted to,  or  established  on  trial  of  a  traverse,  the  custody 
of  the  estate  and  person  is  granted  to  committees  with  a 
proper  allowance  for  maintenance.^  And  even  though  a 
traverse  be  pending,  the  Chancellor  may  at  his  discretion 
take  the  same  course.  (0)  If  no  one  is  willing^ to  become 
committee  of  the  estate,  a  receiver  may  be  appointed,  with 
the  usual  allowance ;  and  under  special  circumstances 
remuneration  may  be  given  to  a  committee.  But  the 
general  rule  is,  that  a  committee,  like  any  other  trustee, 
is  not  entitled  to  remuneration,  but  to  reimbursement 
alone.  («)^  The  duty  of  the  committee  or  receiver  of  the 
estate  is  to  manage  the  lunatic's  property  with  care, 
r*2Q4-T  *^^  bring  in  and  pass  his  accounts,  and  to  pay 
and  invest  the  balances  at  such  times  as  the  super- 

{y)  Ex  parte  Hall,  7  Ves.  261 ;  Sherwood  v.  Sanderson,  19  Id.  280 ;  Re 
Bridge,  Cr.  &  P.  338 ;  Re  Watts,  1  Ph.  512. 
(z)  Re  Bridge,  Cr.  &  P.  338. 
(a)  Ex  parte  Radcliflfe,  IJ.  &  W.  619  ;  Ex  parte  Termor,  Jac.  404. 

*  Where  the  lunatic  has  lands  or  other  property  in  the  state  of  his  so- 
journ, although  he  is  domiciled  abroad,  a  commission  must  be  issued  in 
such  state  to  authorise  control  over  the  property  :  matter  of  Pettit,  2  Paige 
174  ;  Matter  of  Perkins,  2  Johns.  Ch.  124  ;  Matter  of  Ganse,  9  Paige  416  ; 
Matter  of  Fowler,  2  Barb.  Ch.  305. 

*  See  Matter  of  Roberts,  3  Johns.  Ch.  43 ;  Matter  of  Livingston,  9  Paige 
440. 


OF    IDIOCY    AND    LUNACY.  587 

intending  officer  (called  the  Master  in  Lunacy)  shall  direct. 
And  he  is  required  to  give  security  by  a  bond  with  sure- 
ties, and  to  satisfy  the  Master,  on  each  occasion  of  passing 
his  accounts,  that  his  sureties  are  living,  and  not  bank- 
rupt or  insolvent,  (i)^ 

In  cases  requiring  the  exercise  of  discretion,  it  is  not 
usual  to  act  without  previous  investigation  by  the  Court. 
The  mode  of  investigation  was,  until  recently,  by  re- 
ferring the  matter  for  inquiry  to  a  Master  in  Chancery. 
But  by  the  recent  statutes  and  orders,  all  such  inquiries, 
except  in  cases  under  the  Lunatic  Trustee  Act,(c)  or 
when  the  Lord  Chancellor  shall  specially  direct  otherwise, 
are  transferred  to  the  Commissioners,  now  termed  the 
Masters,  in  Lunacy.  By  the  same  orders  the  necessity 
of  a  previous  reference  is  in  many  instances  dispensed 
with,  and  an  application  to  the  Chancellor  is  only  requi- 
site to  confirm  the  report,  (c?)  The  inquiries  which  may 
be  thus  made  without  a  previous  reference,  are  inquiries 
as  to  the  presumptive  heir  and  next  of  kin ;  as  to  the 
situation  of  the  lunatic,  and  the  nature  of  his  lunacy; 
and  as  to  his  committees,  his  fortune,  and  his  mainte- 
nance. There  is  a  similar  authority  to  inquire  and  report 
as  to  provisional  management  and  maintenance,  until  the 
appointment  of  committees ;  to  enlarge  the  time  within 
which  the  committee  of  the  estate  must  complete  his 
security,  to  receive  proposals  or  conduct  inquiries  as  to 

(6)  Orders  of  April,  1844. 

(c)  11  Geo.  4  &  1  Wm,  4,  c.  60. 

(d)  5  <$;  6  Yict.  c.  84  ;  8  &  9  Vict.  c.  100,  s.  2  ;  Orders  of  October,  1842. 

*  In  the  Matter  of  Elias,  3  Macn.  &  Gord,  234,  an  order  was  made,  on 
the  application  by  a  curator  of  a  lunatic  resident  in  Holland,  for  the  trans- 
fer to  him  of  the  corpus  of  funds  in  England,  to  which  the  lunatic  was  en- 
titled ;  though  it  did  not  appear  either  that  the  lunatic  was  a  Dutch  sub- 
ject, or  that  the  curator  had  given  security. 


588  ADAMS's    DOCTRINE    OF    EQUITY. 

managing,  settling,  or  letting  the  estate,  or  otherwise  re- 
specting the  person  and  property ;  to  take  from  time  to 
time  the  committee's  account;  and  to  determine  whether 
any  and  which  of  the  presumptive  heirs  or  next  of  kin 
shall  attend  at  the  cost  of  the  estate  on  any  proceedings 
in  lunacy,  {e)  The  principle  on  which  the  attendance  of 
-^  „  the  heir  and  next  of  *kin  is  allowed,  is  not  that 
they  have  any  recognised  interest  in  the  lunatic's 
property,  but  that  they  are  most  likely  to  possess  infor- 
mation respecting  it,  and  to  assist  in  its  proper  adminis- 
tration. (/) 

The  power  of  the  committee  to  deal  with  the  estate 
was  at  common  law  very  limited ;  for  the  interest  of  the 
Crown  was  determinable  on  recovery  or  death ;  and  any 
lease  or  other  disposition  by  the  committee  was  necessa- 
rily subject  to  the  same  contingency .  (^)  The  statutory 
powers  applying  to  the  beneficial  interests  of  a  lunatic 
are  conferred  by  the  statute,  which  has  been  already 
noticed,  "for  amending  the  laws  relating  to  property  be- 
longing to  infants,  femes  covert,  lunatics,  and  persons  of 
unsound  mind."(/i) 

By  the  early  clauses  of  this  statute  provision  is  made, 
as  already  noticed,  for  admittance  of  lunatics  as  well  as 
of  infants  and  femes  covert  to  copyhold  property,  and  for 
raising  the  fine  payable  on  admittance,  without  requiring 
the  sanction  of  a  judicial  order.  The  powers  conferred  by 
the  subsequent  clauses  in  the  case  of  infants  and  femes 
covert  have  been  already  stated,  [i)  The  powers  conferred 
in  the  case  of  lunatics  are  to  be  exercised  under  the  sanc- 

(e)  Orders  of  October,  1842,  10  to  15. 

(/)  Ex  parte  Whitbread,  2  Meriv.  99  ;  Re  Pearson,  1  Coop.  Ch.  Ca.  314. 

{g)  Supra,  Trust;  Mortgage. 

{h)  11  Geo.  4  &  1  Wm.  4,  c.  65. 

(i)   Supra,  Infants. 


OF     IDIOCY    AND    LUNACY.  589 

tion  of  the  Lord  Chancellor,  intrusted  under  the  sign 
manual  with  the  custody  of  lunatics.  The  acts  which  the 
Lord  Chancellor  is  thus  empowered  to  direct,  are  the  sur- 
render of  renewable  leaseholds  belonging  to  a  lunatic, 
and  the  acceptance  of  renewed  ones  in  their  stead ;  the 
renewal  of  leases  which  the  lunatic,  if  not  under  disabil- 
ity, might  be  compelled  to  renew,  or  which  it  shall  be 
for  his  benefit  to  renew ;  the  exercise  of  leasing  powers 
vested  in  a  lunatic  over  property  in  which  he  has  a  lim- 
ited estate ;  the  leasing  of  property  belonging  to  a  lunatic 
in  fee  or  in  tail,  or  for  an  absolute  leasehold  interest ;  the 
entering  into  agreements  on  behalf  of  the  lunatic  under 
the  Act  for  augmenting  *the  Maintenance  of  the  r*oQc-| 
Poor  Clergy ;  {k)  the  making  conveyances  under 
a  decree  for  specific  performance,  where  the  contracting 
party  has  become  lunatic  after  his  contract  was  made ; 
the  selling  or  charging  a  lunatic's  estate  for  the  purpose 
of  raising  money  to  pay  debts,  encumbrances,  and  costs ; 
the  transfer  and  payment  of  a  lunatic's  stock  and  divi- 
dends, under  which  name  is  included  every  fund,  annuity, 
or  security  transferable  in  the  books  of  any  company; 
and  the  like  transfer  of  stock  vested  in  any  person  resid- 
ing out  of  England,  when  such  person  has  been  declared 
lunatic,  and  his  personal  estate  has  been  vested  in  a  cura- 
tor according  to  the  law  of  his  place  or  residence.  The 
same  act  provides,  that  transcripts  of  inquisitions  on  com- 
missions under  the  Great  Seal  of  Great  Britain  may  be 
entered  of  record  in  Ireland,  and  acted  on  there  ;  and  vice 
versa,  with  respect  to  commissions  under  the  Great  Seal 
of  Ireland. 

The  principle  on  which  the  lunatic's  estate  is  managed 
is  that  of  looking  to  the  lunatic's  interest  alone,  and  act- 

(A;)  1  Geo.  1,  c.  10. 


690  ADAMS's     DOCTRINE    OP    EQUITY. 

ing  as  an  owner  of  competent  understanding  would  do, 
without  regard  to  his  eventual  successors.  The  effect  of 
such  management  may,  in  some  instances,  be  to  alter 
the  property  from  real  to  personal,  or  vice  versa  ;  e.  g.,  by 
cutting  timber  on  the  real  estate,  or  by  paying  out  of  the 
personalty  for  repairs  or  improvements.^  And  if  such 
alteration  be  made,  the  property  will  devolve,  on  the 
lunatic's  death,  in  accordance  with  its  altered  character, 
and  not  in  accordance  with  that  which  it  previously  bore. 
It  is  otherwise,  as  we  have  seen,  in  the  case  of  an  infant; 
for  an  infant  has  different  powers  over  real  and  personal 
estate ;  and  is  entitled,  for  his  own  sake,  independently 
of  any  supposed  equity  between  his  real  and  personal 
representatives,  to  be  protected  from  any  conversion  of  the 
one  into  the  other.  The  Court,  therefore,  in  ordering  the 
conversion  to  be  made,  will  add  a  declaration  that,  while 
r*2Q71  *^^^^  minority  lasts,  the  converted  property  shall 
retain  in  equity  its  original  character.  A  luna- 
tic stands  on  a  different  footing ;  for  at  the  instant  of  a 
lucid  interval  he  has  precisely  the  same  power  of  dispo- 
sition over  either  species  of  estate ;  and  therefore,  if  in 
the  ordinary  course  of  management  it  is  for  his  benefit  to 
make  the  change,  there  is  no  equity  to  interfere  with  its 
result.  But  the  rule  must  be  understood  with  this  guard, 
that   nothing    extraordinary  is  to    be  attempted ;  e.  g., 

'  Accordingly,  in  the  Matter  of  Salisbury,  3  Johns.  Ch.  347,  it  was  held 
that  in  the  management  of  a  lunatic's  estate  the  interest  of  the  lunatic  is 
more  regarded  than  the  contingent  interest  of  those  who  may  be  entitled 
to  the  succession ;  and  the  court,  if  it  be  for  the  interest  of  the  lunatic,  may 
direct  real  estate  to  be  converted  into  personal,  or  personal  into  real.  Thus 
it  may  direct  timber  standing  to  be  sold.  As  to  its  power  to  order  an  ex- 
change of  any  portion  of  the  estate,  see  Matter  of  Heller,  3  Paige  199  ;  In 
re  Livingston,  9  Id.  440  ;  Matter  of  Drayton,  1  Dessaus.  186. 


OF    IDIOCY    AND    I-UNACY.  591 

estates  to  be  bought,  or  interests  disposed  of.  Alteration 
of  property  is  to  be  avoided,  so  far  as  is  consistent  with 
the  proprietor's  interest.  (/) 

The  same  principle  of  looking  to  the  lunatic's  advan- 
tage alone  is  pursued  in  fixing  the  amount  of  the  main- 
tenance ;  and  provision  therefore  may  be  made  for  modes 
of  expenditure  which  are  substantially  for  the  lunatic's 
benefit,  though  they  may  not  be  such  as  he  is  legally 
bound  to  incur ;  e.  g.,  if  the  father  of  a  family  be  lunatic 
the  Court  will  not  consider  the  mere  legal  right  of  his 
wife  and  children,  but  will  make  an  allowance  suitable  to 
their  station  in  life.  And  so  if  property  descend  on  a 
lunatic,  and  his  brothers  and  sisters  are  slenderly  pro- 
vided for,  his  allowance  may  be  increased  to  give  assistance 
to  them.(m)^ 

If  after  due  allowance  for  the  lunatic's  maintenance, 
there  is  still  a  disposable  surplus  of  his  estate,  such  sur- 
plus may  be  applied  in  payment  of  his  debts ;  and  on  a 
petition  by  a  creditor,  a  reference  will  be  made  to  inquire 
what  debts  there  are,  and  how  they  should  be  discharged; 
but  there  is  no  instance  of  paying  the  debts  without  re- 

(Z)  Oxenden  v.  Lord  Compton,  2  Ves.  J.  69 ;  Ex  parte  Phillips,  19  Id. 
118  ;  Ex  parte  Digby,  IJ.  &  W.  620;  Re  Badcock,  4  M.  &  C.  440. 

[m)  Ex  parte  Whitbread,  2  Mer.  99  ;  Re  Blair,  1  M.  &  C.  300  ;  Re  Drum- 
mond.  Id.  627  ;  Re  Carysfoot,  Cr.  «fe  P.  76  ;  Edwards  v.  Abrey,  2  Ph.  37  ; 
Re  Thomas,  Id.  169 ;  Re  Clarke,  Id.  282 ;  [In  re  Frost,  5  Ch.  Law  R. 
699.] 

'  The  court  has  power  out  of  the  surplus  income  of  the  estate  of  a  luna- 
tic, to  provide  for  the  support  of  persons  not  his  next  of  kin,  and  whom  the 
lunatic  is  under  no  legal  obligation  to  support,  as  e.  g.,  persons  whom  he 
had  adopted  as  children  :  Matter  of  Heeney,  2  Barb.  Ch.  326.  See  on  the 
subject  of  the  maintenance  to  be  allowed,  Davies  v.  Davies,  2  De  G.,  M.  & 
G.  51 ;  Re  Burbridge,  3  M.  &  G.  I  ;  Eckstein's  Estate,  1  Pars.  Eq.  67  ; 
Guthrie's  App.,  16  Penn.  St.  321. 


592  Adams's  doctrine   of  equity. 

serving  a  sufficient  maintenance,  although  the  creditors 
cannot  be  restrained  from  proceeding  at  law.  (w)^ 
r*9Q81  *^^  ^^^  death  of  the  lunatic,  the  power  of  ad- 
ministration is  at  an  end,  except  as  to  orders 
which  have  been,  already  made,  or  which  are  consequen- 
tial on  reports  or  petitions  already  made  or  presented,  (o) 
But  the  committee  continues  under  the  control  of  the 
Court,  and  will  be  ordered  on  the  application  of  the  lu- 
natic's heir  to  deliver  up  possession  of  the  estate."  In 
the  case  of  an  idiot,  where  the  Crown  has  a  beneficial 
interest,  an  ouster  le  main  must  be  sued ;  and  it  has  been 

[n)  Ex  parte  Dikes,  8  Ves.  79 ;  Ex  parte  Hastings,  14  Id.  182. 
(o)  Ex  parte  McDougal,  12  Ves.  384;  Rock  v.  Cooke,  1  Coll.  477. 

^  In  New  York,  the  real  estate  of  a  lunatic  may  be  sold  for  the  payment 
of  his  debts  on  a  creditor's  bill  or  on  petition  :  Brasher  v.  Van  Cortlandt,  2 
Johns.  Ch.  242,  400.  But  not  till  the  personal  estate  is  exhausted  :  In  re 
Pettit,  2  Paige  596.     See  also,  Kennedy  v.  Johnson,  65  Penn.  St.  451. 

In  Kentucky,  it  would  seem,  the  Chancellor  has  no  right  to  decree  a  sale 
of  a  lunatic's  estate  for  the  payment  of  his  debts:  Berry  v.  Rogers,  2  B. 
Monr.  308.  Moreover,  in  New  York,  a  suit  at  law  cannot  be  brought 
against  a  lunatic,  under  the  care  of  a  committee,  without  permission  of  the 
court  first  obtained:  Matter  of  Hopper,  5  Paige  489. 

^  The  death  of  the  lunatic  determines  the  office  of  the  committee,  and 
the  only  power  which  Chancery  retains  over  the  committee,  as  such,  is  to 
compel  him  to  account  and  deliver  possession  of  the  property  as  the  court 
shall  direct.  But  the  committee  is  to  retain  possession,  and  preserve  the 
property  until  some  person  shall  appear  properly  authorized  to  receive  it 
from  him  ;  and  in  the  meantime,  if  there  is  reason  to  apprehend  delay  in 
ascertaining  who  are  entitled  to  the  possession,  a  receiver  may  be  appointed, 
upon  application  of  the  parties  in  interest.  The  jurisdiction  of  Chancery 
in  lunacy  relnains,  after  the  death  of  the  lunatic,  only  to  the  extent  and  for 
the  purpose  of  having  the  necessary  account  taken,  and  directing  the  fund 
OP  estate  to  be  paid  over  to  the  party  or  parties  entitled.  After  the  death 
of  the  lunatic,  the  court  will  not  administer  the  fund  even  for  the  benefit 
of  creditors  ;  they  must  pursue  their  remedies  before  the  ordinary  jurisdic- 
tions ;  nor  will  it  adjudicate  questions  of  right  between  opposing  claimants  : 
Matter  of  Colvin,  3  Md.  Ch.  278;  Guerard  v.  Gaillard,  15  Rich.  (S.  C.) 
L.  2?. 


OF    IDIOCY    AND    LUNACY.  593 

doubted  whether,  on  the  death  or  recovery  of  a  lunatic, 
the  same  course  should  not  in  strictness  be  followed. 
The  practice,  however,  is  to  restore  possession  by  an 
order  of  the  Court,  (jt?) 

{p)  Ex  parte  Fitzgerald,  2  Sch.  &  L.  439 ;  Re  Pearson,  1  Coop.  Ch.  Ca. 
314. 


38 


[*299]  *BOOK  IV. 

OF  THE  FORMS  OF  PLEADING  AND  PROCEDURE  BY  WHICH 
THE  JURISDICTION  OF  THE  COURTS  OF  EQUITY  IS  EXER- 
CISED. 


CHAPTER    I 


OF   THE    BILL. 


We  have  now  exhausted  the  consideration  of  the  pre- 
rogative jurisdiction  of  the  Court  of  Chancery.  But  an 
inquiry  still  remains  as  to  the  forms  of  pleading  and  pro- 
cedure, in  accordance  with  which  that  jurisdiction  is 
exercised.^ 

It  is  obvious  that  in  every  Court  some  forms  must 
exist ;  but  the  character  of  those  forms  is  different  at  l^-w 
and  in  equity,  in  conformity  with  the  different  objects 
which  the  two  tribunals  respectively  contemplate. 

The  object  of  the  common  law  Courts  in  their  original 
structiire  was  to  reduce  the  litigation  to  a  single  issue, 
and  to  obtain  from  the  appropriate  tribunal  a  decision  on 
that  issue ;  from  the  Court  on  an  issue  of  law,  from  a 

*  See  some  remarks  upon  the  changes  introduced  into  Chancery  Practice 
and  Procedure,  in  England  and  the  United  States,  in  the  Preface. 


OF    THE    BILL.  595 

jury  on  an  issue  of  fact.  By  statutory  enactment  seve- 
ral distinct  issues,  both  of  law  and  fact,  may  now  indeed 
be  raised  in  the  same  action,  but  each  issue  must  be  kept 
separate,  and  cannot  be  prayed  in  aid  of  the  others.  In 
accordance  with  this  principle  the  pleadings  are  framed, 
first,  for  the  production  of  single  or  separate  issues ; 
secondly,  for  keeping  separate  the  law  and  the  fact. 

*The  pleadings  begin  with  the  declaration  or  r*oAA-i 
statement  bj^  the  plaintiff  of  his  cause  of  action. 
This  is  followed  by  the  defence,  either  by  demurrer,  if 
the  declaration  be  insufficient  in  law,  or  by  one  or  more 
pleas,  if  it  be  untrue  or  incomplete  in  fact.  If  the  decla- 
ration be  untrue,  the  form  of  pleading  is  by  denial,  dis- 
puting some  material  averment.  If  it  be  incomplete,  by 
confession  and  avoidance,  admitting  the  declaration  to  be 
correct,  but  averring  some  new  fact  to  avoid  or  vitiate  the 
cause  of  action.  On  demurrers,  or  pleas  in  denial,  issues 
of  law  or  fact  are  necessarily  raised;  on  pleas  in  confes- 
sion and  avoidance,  the  litigation  is  made  dependent  on  the 
new  averments.  These  new  averments,  therefore,  must 
in  turn  be  replied  to  by  the  plaintiff,  and  the  pleadings 
are  continued  on  the  same  principle,  each  in  turn  super- 
seding the  rest,  until  all  matter  of  confession  and  avoid- 
ance is  exhausted,  and  direct  issues  are  arrived  at. 

If  the  issues  thus  arrived  at  are  issues  of  law,  they  are 
determined  by  the  Court  on  argument.  If  they  be  issues 
of  fact,  a  jury  is  empannelled  to  try  them.  The  manner 
of  trial  by  jury  is  that  the  evidence  is  given  viva  voce 
and  publicly,  subject  to  cross-examination  by  the  opposite 
party  ;  it  is  then  summed  up  and  the  law  explained  by 
the  judge,  and  a  separate  verdict  is  given  upon  each 
separate  issue,  and  the  verdict,  when  given,  is  without 
appeal.     There  is,  however,  a  discretionary  power  in  the 


596  ADAMS'S    DOCTRINE    OF    EQUITY. 

Court,  if  the  Judge  has  misstated  the  law,  or  if  the  ver- 
dict given  is  contrary  to  the  evidence,  or  there  has  been 
a  surprise  upon  the  party  failing,  or  for  other  sufficient 
cause,  to  direct  a  new  trial  by  another  jury. 

After  the  issues  have  been  decided  and  the  judgment 
entered,  it  is  still  open  to  the  unsuccessful  party  by  mo- 
tion to  show  that  the  case,  as  made  on  the  record,  is  not 
such  as  to  a  warrant  such  judgment,  and  to  have  the  same 
arrested ;  otherwise  execution  follows,  as  of  course,  upon 
the  judgment,  and  a  writ  issues  to  the  sheriff,  directing 
him  to  levy  the  amount  recovered  out  of  the  property  of 
the  unsuccessful  party,  or  to  take  his  body  in  execution. 

If  there  be  error,  and  that  error  be  apparent  on  the 
face  *of  the  record,  there  is  an  appeal  by  ■\vrit  of 
L  -^  error  from  the  decision  of  the  Court  below  to 
the  Exchequer  Chamber  or  the  House  of  Lords,  as  the 
case  may  be ;  but  if  the  error  is  not  an  error  of  law  on 
the  record,  but  a  wrong  verdict  on  matter  of  fact,  there 
is,  as  we  have  seen,  no  right  of  appeal,  but  a  mere  dis- 
cretion in  the  Court  to  grant  a  new  trial. 

In  the  Court  of  Chancery  the  system  is  different. 
The  object  there  aimed  at  is  a  complete  decree  on  the 
general  merits,  and  not  that  the  litigation  should  be  re- 
duced to  a  single  issue  :  and  as  all  issues,  whether  of  law 
or  fact,  are  decided,  or  adjusted  for  decision,  by  the 
Court,  it  is  not  essential  to  keep  them  strictly  distinct. 
The  rules,  therefore,  of  pleading  are  less  stringent  than 
at  law ;  but  they  are  equally  regulated  by  principle ;  and 
in  order  to  secure  adherence  to  such  principle,  every 
pleading,  except  the  formal  replication,  must  be  sanction- 
ed by  the  signature  of  counsel. 

The  commencement  of  a  suit  in  equity  on  behalf  of  a 
subject  is  by  preferring  a  bill,  in  nature  of  a  petition,  to 


OF    THE    BILL.  597 

the  Lord  Chancellor  or  other  holder  of  the  Great  Seal, 
or  if  the  Seal  be  in  the  King's  hands,  or  the  holder  of  it 
be  a  party,  to  the  King  himself  in  his  Court  of  Chancery. 
This  is  termed  an  original  bill,  to  distinguish  it  from 
other  bills,  filed  in  the  course  of  a  suit  to  remedy  defects 
and  errors.  If  the  party  injured  be  an  infant,  or  a  mar- 
ried woman  suing  separately  from  her  husband  (unless 
the  husband  be  banished  or  has  abjured  the  realm),  it  is 
preferred  by  a  person  styled  the  next  friend,  and  named 
in  the  record  as  such,^     If  he  be  a  lunatic  or  idiot,  it  is 

^  A  married  -woman  who  has  instituted  a  suit  in  the  ordinary  way  may 
afterwards  apply  for  an  order  to  sue  in  forma  pauperis :  Wellesley  ».  Wel- 
lesley,  16  Sim.  1 ;  but  cannot  institute  a  suit  in  forma  pauperis  without  a 
next  friend  :  Re  Page,  17  Jur.  336 ;  16  Beav.  588.  In  subsequent  cases, 
however,  before  the  Lords  Justices  of  Appeal,  a  married  woman  living 
apart  from  her  husband  was  allowed  to  sue  in  forma  pauperis,  on  an 
aflBdavit  of  poverty,  and  that  she  could  procure  no  person  to  act  as  next 
friend,  and  this  upon  an  ex  parte  application :  Re  Lancaster,  18  Jur.  229. 

A  person  of  color,  held  in  slavery,  can  sue  in  Chancery  for  his  freedom 
only  by  a  next  friend :  Doran  v.  Brazleton,  2  Swan  149 

The  executor  or  administrator  of  a  decedent's  estate  is  in  general  the 
only  proper  party  complainant  in  suits  against  third  persons  touching  the 
estate :  Stainton  r.  Carron  Co.,  18  Beav.  146 ;  Davidson  v.  Potts,  7  Ired. 
Eq.  272.  Parties  interested,  not  being  the  legal  personal  representatives, 
will  not  be  allowed  to  sue  persons  possessed  of  assets  belonging  to  the 
estate,  unless  they  satisfy  the  Court  that  such  assets  would  probably  be 
lost  if  the  suit  had  not  been  instituted.  Special  circumstances  must 
always  be  made  out.  Such  a  bill  would  be  supported  in  case  of  a  deceased 
partner,  where  the  relation  between  the  executor  and  the  surviving  part- 
ners was  such  as  to  present  a  substantial  impediment  to  the  prosecution, 
by  the  executor,  of  the  rights  of  the  parties  interested  in  the  estate  against 
the  surviving  partners.  There  is  a  distinction,  however,  between  a  general 
administration  suit  and  one  for  the  recovery  of  particular  outstanding 
assets.  In  the  former  a  residuary  legatee,  or  other  person  interested,  may, 
on  instituting  suit  against  the  executor  for  the  settlement  of  the  general 
accounts,  join  the  surviving  partner,  even  though  no  collusion  be  alleged 
or  proved.  This,  however,  does  not  apply  to  a  joint  stock  company,  unless 
there  be  additional  circumstances:  Stainton  ».  Carron  Co.,  18  Jur.  137; 
Travis  v.  Milne,  9  Hare  141.  In  Stainton  v.  Carron  Co.  the  Court  declined 
to  sustain  a  bill  filed  by  parties  interested  in  an  estate  against  a  joint  stock 


598  ADAMS's    DOCTRINE    OF    EQUITY. 

by  the  committee  of  his  estate,  or  sometimes  by  the  At- 
torney-General on  behalf  of  the  Crown  as  the  general 
protector  of  lunatics.  (r<) 

If  the  suit  be  on  behalf  of  the  Crown,  of  those  who  par- 
take of  its  prerogative,  or  of  those  whose  rights  are  under 
its  particular  protection,  as,  for  example,  the  objects  of  a 
public  charity,  the  complaint  is  preferred  by  the  ^l^ttorney 
or  Solicitor-General,  and  the  bill  is  not  one  of  petition 
r*R021  ^^  *complaint,  but  of  information  to  the  Court  of 
the  wrong  committed.^  If  the  suit  does  not  im- 
mediately concern  the  rights  of  the  Crown,  its  officers 
generally  depend  on  the  relation  of  some  person,  termed 
the  relator,  who  is  named  on  the  record  as  such,  and  is 
answerable  for  the  costs;  and  if  such  relator  has  a  per- 
sonal ground  of  complaint,  it  is  incorporated  with  the  infor- 
mation, and  they  form  together  an  information  and  bill. 
An  information  differs  from  a  bill  in  little  more  than 
name  and  form,  and  will  therefore  be  considered  under 
the  general  head  of  hi\h.{aa) 

(a)  Mitf.  on  Plead.  24-30 ;  1  Dan.  C.  P.  72-132. 
{aa)  Mitf.  on  Plead.  21-24. 

company  of  which  the  testator  was  a  member,  and  against  which  he  had 
had  claims,  the  ground  of  the  bill  being  that  the  executors  were  also 
managers  in  the  concern,  and  a  conflict  of  duties  and  interests  being 
feared,  but  no  collusion  or  intended  neglect  being  alleged.  One  portion 
of  a  set  of  next  of  kin  cannot  sue  another  portion  without  an  adminis- 
trator as  party,  and  it  makes  no  difference  that  those  who  wish  to  sue 
reside  out  of  the  state,  and  cannot  procure  letters  of  administration : 
Davidson  v.  Potts,  7  Ired.  Eq.  272. 

So  to  a  suit  by  a  creditor  of  an  intestate,  against  an  executor,  de  son 
tort,  for  an  account  and  payment,  it  i^necessary  that  a  personal  represen- 
tative duly  constituted  should  be  a  party :  Greaser  v.  Robinson,  14  Beav. 
589. 

^  It  is  no  longer  necessary  that  the  Attorney-General  shall  be  a  party  to 
proceedings  in  equity,  in  cases  of  public  nuisance.  A  municipal  corpora- 
tion is  a  proper  party  in  such  case,  where  the  nuisance  is  within  its  limits : 
Com.  of  Moyamensing  v.  Long,  1  Pars.  Eq.  146. 


OF     THE    BILL.  599 

An  original  bill  or  information  consists  of  five  principal 
parts,  viz.,  1.  The  statement;  2.  The  charges;  3.  The 
interrogatories ;  4.  The  prayer  of  relief;  and  5.  The 
prayer  of  process.^ 

The  statement  of  a  bill  is  prefaced  by  the  heading, 
addressing  it  to  the  holder  of  the  Great  Seal,  the  terms 
of  which  are  from  time  to  time  prescribed  by  the  Court,  (b) 
It  then  commences  with  the  words,  "  Humbly  complain- 
ing showeth  unto  your  Lordship,  your  orator,"  &c.,  giving 
the  name,  description,  and  place  of  abode  of  the  plaintiff,^ 
and  if  necessary,  of  the  next  friend,  committee,  or  rela- 
tor, (c)  and  then  narrating  the  case  for  relief.  Its  object 
is  to  show  the  right  to  relief;  it  must  state  a  consistent 
case  on  behalf  of  all  the  plaintiffs,  and  must  state  it  in 
direct  terms,  and  with  reasonable  certainty. 

It  must  state  a  consistent  case  on  behalf  of  all  the 
plaintiffs ;  for  if  their  claims  are  inconsistent,  or  any  of 
them  have  no  claim,  the  misjoinder  will  be  fatal  to  the 

(&)  1  Dan.  339.  (c)  Id.  340. 

^  The  form  of  the  bill  is  now  much  simplified  in  England  (see  the  Pre- 
face) ;  and  in  Pennsylvania  by  the  Rules  of  Equity  Practice,  adopted  May 
27,  1865. 

*  The  residence  of  the  complainant  should  be  stated  in  his  bill ;  and  if  it 
is  not  stated  therein,  the  defendant  may  apply  to  the  Court  and  obtain  an 
order  that  the  complainant  give  security  for  costs  :  Howe  v.  Harvey,  8  Paige 
73.  Whether  the  defendant  can  demur  for  this  cause,  quaere  ?  Ibid.  The 
description  of  the  plaintiff  is  a  material  portion  of  the  bill ;  if  it  is  absent, 
the  objection  may  be  taken  by  demurrer;  if  untrue,  the  objection  may  be 
taken  by  plea.  But  in  the  latter  case  the  plea  must  sufficiently  aver  that 
the  description  was  false  at  the  time  of  filing  the  bill :  Smith  v.  Smith,  1 
Kay,  App.  23  ;  Winnipiseogee  Lake  Co.  r.  Worster,  9  Foster  433.  In  New 
York,  however,  the  omission  to  state  the  complainant's  addition  or  occupa- 
tion is  no  longer  a  ground  for  demurrer :  Gove  r.  Pettis,  4  Sand.  Ch.  403. 
By  the  20th  rule  in  Equity  of  the  United  States  Courts,  every  bill  must 
contain  in  the  introductory  part,  the  names,  places  of  abode,  and  citizen- 
ship of  all  the  parties,  plaintifis,  and  defendants.  And  see  Dodge  v.  Per- 
kins, 4  Mason  435. 


600  ADAMS's    DOCTRINE    OF    EQUITY. 

suit;  or,  at  all  events,  the  Court  will  only  make  such  a 
decree  as  will  leave  their  claims  in  respect  to  each  other 
wholly  undecided,  (c?)^ 

r*^n^1        *It  must  state  the  case  in  direct  terms (e)  and 
with  reasonable  certainty  f  not  necessarily  with 

(d)  Cholmondeley  v.  Clinton,  T.  &  R.  117 ;  2  J.  &  W.  134 ;  King  of 
Spain  V.  Machado,  4  Russ.  2/5;  Bill  v.  Cureton,  2  M.  &  K.  503  ;  Lambert 
V.  Hutchinson,  1  Beav.  277 ;  Jacob  v.  Lucas,  Id.  436 ;  Davies  v.  Quarterman, 
4  Y.  &  C.  257 ;  Anderson  v.  Wallis,  1  Ph.  202 ;  1  Dan.  C.  P.  290-292. 

(e)  Stansbury  v.  Arkwright,  6  Sim.  481 ;  Hammond  v.  Messenger,  9 
Sim.  327,  355 ;  [ChampneysT.  Buchan,  4  Drew.  123.] 


^  See  Richardson  v.  McKinson,  Litt.  Sel.  Cas.  320;  Terrill  v.  Craig, 
Halst.  Dig.  223  ;  Thurman  v.  Shelton,  10  Yerger  383  ;  Mix  v.  Hotchkiss, 
14  Conn.  32 ;  Swayze  v.  Swayze,  1  Stockt.  273.  Parties  having  conflicting 
interests,  each  claiming  the  title  in  the  property  in  dispute  to  be  in  him- 
self, cannot  unite  as  plaintiffs ;  and  a  bill  containing  an  averment  that 
one  of  such  plaintiffs  is  entitled,  and  if  he  is  not  the  other  is,  cannot  "be 
supported :  Ellicott  v.  Ellicott,  2  Md.  Ch.  4C8.  But  where  plaintiffs 
properly  join  in  a  bill  for  relief  to  which  all  are  entitled,  a  claim  by  one 
of  them  for  further  relief,  peculiar  to  himself,  is  not  ground  for  demurrer 
to  the  whole  bill :  Clarkson  v.  De  Peyster,  3  Paige  320.  And  unconnected 
parties,  having  a  common  interest  centering  in  the  point  in  issiie  in  the 
cause,  may  unite  in  the  same  bill.  Thus,  where  two  non-residents,  having 
distinct  claims  against  another  non-resident,  filed  their  bill  in  Mississippi 
to  subject  funds  of  the  non-resident  defendant,  in  the  hands  of  a  resident 
of  that  state,  who  was  also  made  defendant,  it  was  held,  on  demurrer, 
that  the  bill  was  sustainable :  Comstock  v.  Rayford,  1  Sm.  &  M.  423 ; 
see  also,  Armstrong  r.  Athens  Co.,  10  Ohio  235  ;  Ohio  v.  Ellis,  10  Id. 
456  ;  Dawson  v.  Lawrence,  13  Id.  543  ;  Tilford  v.  Emerson,  1  A.  K.  Marsh. 
■  483;  Scrimeger  iJ.  Buckhannon,  3  Id.  219;  Tilman  t;.  Searcy,  5  Humph. 
487  ;  Morris  v.  Dillard,  4  Sm.  &  M.  636  ;  Wood  v.  Barringer,  1  Dev.  Eq.  67. 

*  A  rigid  and  technical  construction  of  bills  is  exploded  :  Roane,  J.,  in 
Mayo  v.  Murchie,  3  Munf.  384.  But  every  material  allegation  should  be 
put  in  issue  by  the  pleadings,  so  that  the  parties  may  be  duly  apprised  of 
the  essential  inquiry,  and  be  enabled  to  collect  testimony  to  meet  it:  Kent, 
J.,  in  James  v.  McKarnon,  6  Johns.  564.  See  Wilcox  v.  Davis,  4  Minn. 
200.  Every  averment,  therefore,  necessary  to  entitle  a  plaintiff  in  equity 
to  the  relief  prayed  for,  must  be  contained  in  the  stating  part  of  the  bill ; 
and  if  every  necessary  fact  be  not  distinctly  and  expressly  averred  in  that 
part,  the  defect  cannot  be  supplied  by  inference,  or  by  reference  to  aver- 
ments in  other  parts  :  Wright  v.  Dame,  22  Pi(jk  55.     Xor  can  the  plaintiff 


OF    THE    BILL.  601 

the  same  technical  precision  as  at  law,  but  with  sufficient 
precision  to  show  that  there  is  a  definite  equity.     And  if 

rely  upon  the  interrogatories  to  supply  defects  in  the  stating  part  of  his 
bill :  Gowles  v.  Buchanan,  3  Ired.  Eq.  374.  The  allegations  must  be 
positive,  and  not  by  way  of  recital :  Mclntyre  v.  Trustees  of  Union  Col- 
lege, 6  Paige  239,  251.  When  a  judgment  creditor  seeks  the  aid  of  a  Court 
of  equity  to  enforce  the  payment  of  his  judgment,  he  must  aver  in  his  bill 
that  an  execution  has  been  issued,  and  has  been  returned  unproductive. 
A  mere  averment  of  insolvency  will  not  be  sufficient:  Suydam  v.  The 
North  Western  Ins.  Co.,  51  Penn.  St.  398  ;  Hendricks  v.  Robinson,  2  Johns. 
Ch,  283  ;  Brinkerhoff  ».  Brown,  4  Id.  671 ;  McElwain  v.  Willis,  9  Wend.  - 
548.  The  best  test  of  what  are  proper  averments  of  facts  in  a  bill  or 
answer  is  whether  they  are  such  matters  as  a  witness  may  be  called  upon 
to  prove,  or  the  truth  of  which  must  be  established  by  evidence,  to  enable 
a  Court  to  act ;  if  they  are  not,  then  such  averments  are  merely  principles 
of  equity,  or  some  of  those  public  facts  of  which  the  Court  is  bound  to 
take  judicial  notice  without  proof:  Canal  Co.  v.  Railroad  Co.,  4  Gill  &  J. 
1 ;  see  also,  Shepard  v.  Shepard,  6  Conn.  37  ;  Lingan  v.  Henderson,  1  Bland 
249,  255  ;  Russ  v.  Hawes,  5  Ired.  Eq.  18  ;  Caton  v.  Willis,  Id.  355  5  Salmon 
V.  Clagett,  3  Bland  134  ;  Townshend  v.  Duncan,  2  Id.  45  ;  Fowler  r.  Saun- 
ders, 4  Call  361  ;  Yancy  v.  Fenwick,  4  Hen.  <fe  Munf.  423  ;  Cruger  v.  Hal- 
liday,  11  Paige  314;  Hobart  v.  Frisbie,  5  Conn.  592;  Davis  v.  Harrison, 
4  Litt  262  5  Harding  v.  Handy,  11  Wheat.  103;  Knox  v.  Smith,  4  How. 
U.  S.  298 ;  Spence  v.  Duren,  3  Ala.  251.  The  bill  should  state  a  case 
upon  which,  if  admitted  by  the  answer,  a  decree  can  be  made :  Perry  v. 
Carr,  41  N.  H.  371.  General  allegations  of  fraud,  in  a  bill  where  the 
facts  stated  do  not  make  out  a  case  of  fraud,  will  not  avail  on  demurrer : 
Magniac  r,  Thompson,  2  Wall.  Jr.  209 ;  Hamilton  r.  Lockhart,  41  Miss. 
460;  Hanson  ».  Field,  Id.  712.  Fraud  must  be  expressly  alleged,  how- 
ever, in  order  to  enable  the  complainant  to  rely  on  it  as  a  part  of  his 
case:  Gouverneur  v.  Elmendorf,  5  Johns.  Ch.  79;  Thompson  v.  Jackson, 
3  Rjftid.  504 ;  Booth  v.  Booth,  3  Litt.  57 ;  Miller  v.  Cotten,  5  Ga.  346 ; 
Sawyer  v.  Mills,  20  L.  J.  Ch,  80 ;  Hayward  v.  Purssey,  3  De  G.  &  Sm. 
399 ;  Small  v.  Boudinot,  1  Stockt.  273 ;  Moore  v.  Greene,  19  How.  69 ; 
Bailey  r.  Ryder,  10  N.  Y.  363.  Though  where  the  bill  states  with  distinctness 
and  precision  facts  and  circumstances  which  in  themselves  amount  to  fraud, 
such  an  allegation  totidem  verbis  is  not  absolutely  necessary :  McCalmont 
V.  Rankin,  8  Hare  1 ;  Skrine  v.  Simmons,  11  Ga.  401 ;  Kennedy  v.  Kennedy, 
2  Ala.  571.  See  Smith  y.  Kay,  7  H.  L.  Cas.  730-763.  Unfounded  allegations 
of  fraud  are  discouraged,  and  where  the  complainant  introduces  them  into 
his  bill,  and  fails  to  establish  them,  he  will  debar  himself,  in  general^ 
from  other  relief,  to  which  the  facts  stated  might  otherwise  have  entitled 


602  ADAMS's    DOCTRINE    OF    EQUITY. 

the  equity  depends  on  a  title  to  property  in  the  plaintiff, 
the  statement  must  show  a  sufficient  title  in  point  of  law  ; 
e.  g.,  the  statement  of  a  devise  must  allege  a  will  in 
writing/  the  statement  of  a  grant  must  allege  a  deed/  the 
statement  of  a  title  hy  heirship  must  show  the  manner  of 
descent.  But  if  the  title,  as  stated,  would  have  been 
valid  at  common  law,  and  regulations  have  been  super- 

him :  Price  v.  Berrington,  3  M.  &  G.  496  ;  Eyre  v.  Potter,  15  How.  U.  S. 
56;  Fisher  v.  Boody,  1  Curtis  211.     It  seems,  however,  that  an  unproved 
statement  of  circumstances  which  would  amount  to  fraud,  without  an  ex- 
press charge  of  fraud,  is  not  sufficient  to  deprive  him  of  relief:  Waters  v. 
Mynn,  14  Jur.  341.  Allegations  that  a  complainant  is  informed  and  believes 
that  material  facts  exist,  are  not  sufficient:  McDowell  v.  Graham,  3  Dana 
73 ;  Jones  v.  Cowles,  26  Ala.  612.     But  if  the  facts  essential  to  the  deter- 
mination of  the  plaintiffs  cause,  are  charged  in  the  bill  to  rest  on  the 
knowledge  of  the  defendant  only,   or  must  of  necessity  be  within   his 
knowledge  only,  the  precise  allegation  is  not  required:  Aikin  v.  Ballard, 
1  Rice  Eq.  13  ;  as  e.g.^  a  bill  in  equity  by  a  partner  against  his  copartner 
for  an  account,  &c.,  wherein  it  is  averred  that  the  defendant  has  all  the 
partnership  books  and  papers  in  his  possession,  or  under  his  control,  and 
refuses  to  permit  the   plaintiflf  to  examine  them,  need  not  contain  such 
certainty  and  particularity  of  statement  as  would  be  held  necessary  if  the 
plaintiflf  had  access  to  those  books  and  papers :  Towle  v.  Pierce,  12  Met. 
329  ;  see  also,  Many  v.  Beekman  Iron  Co.,  9  Paige  188.     So,  in  a  bill  for 
dower,  the  widow  is  not  presumed  to  know  the  precise  nature  of  the  hus- 
band's title,  and  defective  allegations  in  regard  thereto  may  be  aided  by 
the  answer :  Garton's  Heirs  v.  Bates,  4  B.  Monr.  366 ;  Wall  et  al.  v.  Hill, 
7  Dana  172.     It  need  not  be  stated  in  the  bill  that  there  is  not  an  adequate 
remedy  at  law ;  it  is  sufficient  if  it  appear  from  the  facts  disclosed  in  the 
bill  that  such  remedy  does  not  exist:  Botsford  v.  Beers  et  al.,  11  Conn. 
369 ;   see  also,  Boston  Co.  v.  Worchester  R.  R.Corp.,  16  Pick,  512  ;  Scrib- 
ner  v.  Allen,  12  Minn.  148. 

*  Where  a  bill  is  filed  by  persons  in  the  character  of  legatees,  and  it 
neither  sets  out  in  its  body  the  contents  of  the  will,  nor  has  a  copy  of  it 
annexed,  a  demurrer  by  the  defendant  will  be  sustained,  for  the  Court  can- 
not see  that  the  plaintiflFs  are  legatees:  Martin  v.  McBryde,  3  Ired.  Eq. 
531  ;  see  also,  Belloat  v.  Morse,  2  Haywood  157  ;  Van  Cortlandt  v.  Beek- 
man, 6  Paige  492. 

*  See  King  v.  Trice,  3  Ired.  Eq.  568. 


OF    THE    BILL.  603 

added  by  statute,  it  is  not  essential,  though  usual  to  state 
compliance  ^vith  them.(/)^ 

It  is  not,  however,  requisite  to  state  matters  of  which 
the  Court  takes  judicial  notice,  such  as  public  acts  of 
Parliament,  the  general  customs  of  the  realm,  and  so 
forth;  although,  for  the  sake  of  convenience,  they  are 
often  introduced.^ 

The  charges  of  a  bill  ought  not  to  include,  and  gene- 
rally do  not  include,  any  narrative  of  the  case  for  relief, 
but  are  generally  used  for  collateral  objects ;  e.  g.,  for 

{f)  Wormald  v.  De  Lisle,  3  Beav.  18;  Edwards  v.  Edwards,  Jac.  335; 
Seddon  v.  Connell,  10  Sim.  79  :  Williams  v  Earl  of  Jersey,  C.  &  P.  91 ;  1 
Dan.  C.  P.  303-310,  346-9  ;  Steph.  on  Pleading  341,  364,  383-6,  411  ;  Wal- 
burn  V,  Ingilby,  1  M.  &  K.  61. 

'  Thus  in  England,  and  most  of  the  United  States,  it  is  not  necessary  in 
a  case  within  the  Statute  of  Frauds,  for  the  complainant  to  allege  in  his  bill 
that  the  contract  or  trust,  with  regard  to  which  relief  is  asked,  was  in  wri- 
ting ;  though  in  Georgia,  the  rule  is  otherwise  :  Logan  v.  Bond,  13  Ga.  192. 
But  if  the  objection  appears  on  the  face  of  the  bill,  a  demurrer  will  lie: 
Story  Eq.  Plead.  I  503.  So  it  is  now  settled,  that  lapse  of  time,  in  cases 
directly  within,  or  by  analogy  to  the  Statute  of  Limitations,  where  it  appears 
on  the  face  of  the  bill,  may  be  taken  advantage  of  by  demurrer ;  and  it  is 
incumbent  on  the  complainant  to  state,  by  way  of  anticipation,  the  facts  and 
circumstances  which  he  relies  on  to  take  the  case  out  of  the  operation  of 
the  general  rules:  Wisner  r.  Barnet,  4  Wash.  C.  C.  631 ;  Dunlap  v.  Gibbs, 
Yerg.  94;  Humbert  v.  Rector  of  Trin.  Ch.,  7  Paige  197,  24  Wend.  595  ; 
Maxwell  v.  Kennedy,  8  How.  U.  S.  210 ;  Field  v.  Wilson,  6  B.  Monr.  479  ; 
Ingraham  v.  Regan,  23  Miss.  213  ;  Bank  U.  S.  v.  Biddle,  2  Pars.  Eq.  31  ; 
Pratt  V.  Northam,  5  Mason  95  ;  Williams  v.  Presb.  Soc.,  1  Ohio  St.  N.  S. 
478 ;  Nimmo  p.  Stewart,  21  Ala.  682 ;  Mayne  r.  Griswold,  3  Sandf.  S.  C. 
464 ;  Story  Eq.  PL  I  484 ;  contr.  Bulkley  v.  Bulkley,  2  Day  363 ;  Hickman 
*».  Stout,  2  Leigh  6.  But  the  laches  must  appear  distinctly  by  the  bill 
itself:  Muir  v.  Trustees,  3  Barb.  Ch.  477  ;  Battle  v.  Durham,  11  Ga.  17. 
And  a  general  demurrer,  where  all  the  grounds  of  relief  stated  in  the  bill 
are  not  barred  by  lapse  of  time  will  be  overruled :  Radcliff  v.  Rowley,  2 
Barb.  Ch.  23. 

*  See  Story  Eq.  Plead.  |  24.  The  Federal  Courts  of  the  United  States 
take  judicial  notice  of  the  laws  and  jurisprudence  of  all  the  states  and 
territories  :  Ibid. :  Owings  v.  Hull,  9  Peters  607. 


604  ADAMS's    DOCTRINE    OF    EQUITY. 

meeting  the  defence  by  matter  in  avoidance,  or  by  in- 
quiries to  sift  its  truth;  for  giving  notice  of  evidence 
which  might  otherwise  operate  as  a  surprise ;  and  for 
obtaining  discovery  as  to  matters  of  detail  which  could 
not  be  conveniently  introduced  in  the  statement. 

1.  For  meeting  the  defence  by  matter  in  avoidance.^ 
The  form  adopted  for  this  purpose  is  that  of  pretence 

and  charge ;  viz.,  an  allegation  that  the  defendant  pre- 
tends, &c.,  stating  the  defence,  and  then  proceeding  thus  : 
"  Whereas  your  orator  charges  the  contrary  io  be  true ; 
and  your  orator  charges  that  even  if  the  said  pretence  be 
true,  yet  that,"  &c.,  stating  the  new  matter  in  avoidance. 
r*^041  ^y  ^^^^  means  the  *plaintiif  is  enabled  to  state 
the  avoidance  on  the  record,  without  admitting 
the  truth  of  the  defence.  Charges  of  this  class  are  some- 
times made  in  anticipation  of  an  expected  defence,  but 
they  are  also  introduced  by  amendment  to  meet  a  defence 
set  up  by  the  answer;  and  the  latter  is  generally  the 
safer  course ;  because  by  attempting  to  anticipate  the 
defence,  a  risk  is  incurred  of  misunderstanding  its  pur- 
port, and  sometimes  of  suggesting  an  objection,  which  the 
defendant  would  otherwise  have  overlooked. 

2.  For  sifting  the  truth  of  the  defence. 

^  As  a  general  rule,  it  Bsems  a  bill  in  equity  should  combine  the  quali- 
ties of  a  declaration  and  replication,  by  anticipating  the  defence,  and" 
charging  the  matter  relied  upon  in  avoidance :  McCrea  v.  Purmont,  16 
Wend.  460.  The  complainant  should  state,  in  the  charging  part,  the 
anticipated  defence  as  a  pretence  of  the  defendant,  and  then  charge  the 
real  facts  to  lay  a  foundation  for  the  discovery  which  is  sought :  Stafford 
V.  Brown,  4  Paige  88.  And  in  a  sworn  bill,  it  is  equally  perjury  for  the 
complainant  knowingly  to  make  a  false  charge  in  the  charging  part,  as  to 
make  a  false  statement  in  the  stating  part :  Smith  v.  Clark,  4  Paige  368. 

The  charging  part  of  the  bill  is  made  unnecessary  by  the  Equity  rules 
in  the  U.  S.  Courts  (xxi.).  In  Pennsylvania  all  merely  formal  parts  must 
be  omitted  :  New  Equity  Rules  xvii. 


OF    THE    BILL.  605 

Charges  of  this  class  are  similar  in  principle  to  those 
of  the  preceding  one,  and  only  differ  from  it  in  so  far, 
that  instead  of  charging  new  matter  in  avoidance,  they 
charge  merely  that  the  pretended  facts  are  untrue,  and  • 
that  so  it  would  appear  if  the  defendant  would  set  forth 
the  time,  place,  and  other  circumstances,  under  which  he 
alleges  them  to  have  happened. 

3.  For  giving  notice  of  evidence  which  might  otherwise 
operate  as  a  surprise. 

It  is  not  requisite  as  matter  of  pleading  that  the  evi- 
dence should  be  set  out  in  detail,  for  the  facts  proved, 
and  not  the  evidence,  constitute  the  case  for  relief.^  The 
system,  however,  of  taking  evidence  secretly,  the  grounds 
of  which  will  be  hereafter  considered,  would  render  it 
possible  to  prove  facts  under  a  general  statement,  which 
though  strictly  admissible  as  evidence  of  its  truth,  would 
be  practically  a -surprise  on  the  opposite  party.  And  the 
Court,  therefore,  will  generally  refuse  to  act  on  such  evi- 
dence, and  will  refer  the  subject  to  a  Master  for  re-investi- 
gation. In  order  to  prevent  this  result,  it  is  frequently 
advisable  to  give  an  outline  of  the  evidence ;  and  if  the 
case  is  one  in  which  the  introduction  of  such  an  outline 
would  cause  an  inconvenient  complexity  of  narration,  the 
statement  may  be  confined  to  a  bare  allegation  of  the 


^  To  this  point  see  Russ  v.  Hawes,  5  Ired.  Eq.  18  ;  Dilly  v.  Heckrotte,  8 
Gill  &  J.  171;  Jackson's  Assignees  r.  Outright,  5  Munf.  314;  Boone  v. 
Chiles,  10  Peters  177  ;  White  v.  Yaw,  7  Verm.  357  ;  Crocker  ».  Higgins,  7 
Conn.  342  ;  Skinner  v.  Bailey,  Id.  496  ;  Hayward  v.  Carroll,  4  Har.  &  J. 
518 ;  Parker  v.  Carter,  4  Munf.  273 ;  Miller  v.  Purse,  1  Bailey  Eq.  187  ; 
Lingan  v.  Henderson,  1  Bland.  236 ;  Townsend  v.  Duncan,  2  Id.  45  ; 
Anthony  v.  Leftwich,  3  Rand.  263  ;  Morrison  v.  Hart,  2  Bibb  4  ;  Lemaster 
t).  Burckhart,  Id.  26 ;  Bank  U.  S.  v.  Schultz,  3  Hamm.  62  ;  Lovell  v.  Far- 
rington,  50  Maine  239  ;  Camden,  &c.,  R.  R.  v.  Stewart,  4  Green  (N.  J.) 
343. 


606  ADAMS's    DOCTRINE    OF    EQUITY. 

equity,  and  may  be  followed  by  a  charge  of  the  specific 
details.  If  the  evidence  be  not  of  the  fact,  but  of  an 
admission  by  the  defendant,  and  especially  if  it  be  of  a 
•  mere  verbal  admission,  it  is  still  more  important  to  charge 
pjj.o,.r-]  it  in  the  bill.  But  the  mere  fact  that  the  *ad- 
mission  has  not  been  specifically  stated  or  charged 
does  not  render  it  inadmissible  as  evidence.(j^)^ 

4.  For  obtaining  discovery  as  to  matter  of  detail,  which 
could  not  be  conveniently  introduced  in  the  statement. 

Charges  of  this  class,  like  those  of  the  preceding  one, 
originate  in  the  i3laintifi*'s  right  to  confine  his  statement  to 
the  fact  constituting  the  equity,  and  to  omit  the  evidence 
by  which  it  is  proved;  e.g.,  to  allege  that  the  defendant 
had  notice  of  his  title,  or  encouraged  him  in  his  conduct, 
without  stating  the  manner  of  notice,  or  of  encouragement. 
And  it  may,  as  already  observed,  be  in  some  cases  con- 
venient so  to  frame  the  statement. 

A  statement,  however,  of  this  general  kind,  although  it 
would  let  in  evidence  in  its  support,  and  would  warrant  an 
interrogatory  in  general  terms,  e.  g.,  whether  the  defend- 
ant had  not  notice,  or  whether  he  did  not  encourage  the 
plaintiff,  would  not  warrant  minute  interrogatories  tend- 
ing to  prove  the  fact,  e.  g.,  whether  he  had  not  seen  a 
particular  deed,  or  had  not  employed  a  particular  person. 
In  order  to  render  such  interrogatories  admissible,  the 
plaintiff  must  insert  specific  allegations,  by  which  their 
relevancy  may  be  shown,  and  their  propriety  tested.^ 

iff)  Earle  v.  Pickin,  1  R.  &  M.  547 ;  McMahon  v.  Burchell,  2  Ph.  127. 

^  Where  a  fact  is  put  in  issue  in  a  bill,  evidence  of  confessions,  conversa- 
tions, or  admissions  of  the  defendant,  is  receivable  to  prove  the  fact,  al- 
though such  confessions  are  not  expressly  charged  in  the  bill  as  evidence 
of  the  fact:  Smith  v.  Burnham,  2  Sumner  612;  Jenkins  v.  Eldredge,  3 
Story  183.     See  also,  Trapnall  v.  Byrd's  Adm'r.,  22  Ark.  10. 

^  A  defect  in  the  charging  part  of  a  bill  cannot  be  supplied  by  a  subse- 


OF    THE    BILL.  ,  607 

And  it  is  not  unusual  to  make  such  allegation  by  way  of 
charge,  so  as  to  avoid  encumbering  the  statement. 

In  bills  where  a  discovery  by  the  defendant  is  of  im- 
portance, it  is  also  usual  to  conclude  by  a  charge  that  the 
defendant  has  or  formerly  had  documents  in  his  possession, 
which,  if,  produced,  would  show  the  truth  of  the  plaintiff's 
case,  and  that  he  ought  to  give  a  schedule  of  them,  and  to 
produce  them  for  inspection  and  proof, 

From  what  has  been  said  on  the  charges  of  a  bill  it 
will  be  obvious  that  they  are  in  reality  supplemental  to 
the  statement,  and  might  have  been  included  in  the 
statement  itself,  but  that  for  convenience  sake  they  are 
subsequently  *introduced,  and  are  distinguished  r^onf*-! 
by  a  peculiar  form  of  commencement.  In  fact, 
in  many  bills,  where  the  circumstances  of  the  case  pre- 
sent no  danger  of  intricacy,  the  whole  of  the  allegations 
are  comprised  in  the  statement,  and  the  charges  are 
omitted. 

The  statement  and  charges  of  a  bill  include  all  its 
allegations,  and  no  allegations  ought  in  strictness  to  be 
inserted  in  them  which  are  not  material  for  some  of  the 
purposes  pointed  out,  viz.,  either  as  establishing  the 
plaintiff's  case,  rebutting  that  of  the  defendant,  or  ob- 
taining discovery  for  one  of  these  purposes.  If  any  mat- 
ter be  alleged  which  is  not  material,  whether  as  irrelevant 
in  toto  or  as  being  matter  of  which  the  Court  will  take 
judicial  notice,,  it  is  in  strictness  impertinent,  and  may  be 


quent  interrogatory ;  and  the  interrogatories  are  to  be  construed  by  the 
charging  part  of  the  bill :  Mechanics'  Bank  v.  Levy,  3  Paige  606  ;  Parker 
V.  Carter,  4  Munf.  273  ;  James  ».  McKemon,  6  Johns.  543  ;  Woodcock  v. 
Bennet,  1  Cowen  734.  It  is  sufficient,  however,  if  the  interrogatory  is 
founded  upon  a  statement  in  the  bill  which  is  inserted  therein  as  evidence 
merely,  in  support  of  the  main  charges :  Mechanics'  Bank  v.  Levy,  supra 


608  .     ADAMS's    DOCTRINE    OF    EQUITY. 

struck  out  of  the  bill  on  application  to  the  Court.^  And 
if  it  he  criminatory  of  the  defendant  or  of  any  other 
person,  it  is  also  objectionable  on  the  ground  of  scandal. 
But  provided  it  be  material,  however  harsh  ,the  charge 
may  be,  it  cannot  be  treated  as  scandalous.  It  should 
also  be  observed  that,  even  if  the  statement  be  material, 
yet  excessive  prolixity  will  be  impertinent ;  as,  for  in- 
stance, if  instead  of  giving  the  effect  of  a  document,  a 
plaintiif,  without  any  sufficient  motive,  were  to  copy  it  at 
length.  But  if  he  has  a  sufficient  motive,  as,  if  the  pre- 
cise language  of  the  document  be  a  matter  of  dispute,  or 
if  it  be  desirable  to  elicit  from  the  defendant  an  admission 
of  its  contents,  the  objection  will  not  apply.  (^)^ 

In  many  of  the  older  precedents  we  find  an  allegation 

[g)  Byde  v.  Masterman,  1  Cr.  &  Ph.  272 ;  1  Dan.  C.  P.  331-338 ;  Orders 
of  1845,  38-42. 

'  The  court  ought  not  at  the  commencement  of  the  suit  to  treat  as  im- 
pertinent matter,  that  which  at  the  hearing  may  be  found  to  be  relevant : 
Reeves  v.  Baker,  13  Beav.  436. 

'  In  determining  whether  an  allegation  or  statement  in  a  bill  is  rele- 
vant or  pertinent,  the  bill  must  not  only  be  regarded  as  a  pleading  to 
bring  before  the  court  and  put  in  issue  the  material  allegations  and  charges 
upon  which  the  complainant's  right  to  relief  rests,  but  also  as  an  exami- 
nation of  the  defendant  for  the  purpose  of  obtaining  evidence  to  establish 
the  complainant's  case,  or  to  counter-prove  or  destroy  the  defence  which 
the  defendant  may  attempt  to  set-up  :  Hawley  v.  Wolverton,  5  Paige  522. 
A  few  unnecessary  words  in  a  bill  do  not  render  the  pleading  impertinent. 
And  the  Master  should  not  allow  an  exception  on  account  of  a  few  unne- 
cossary  words,  except  where  they  will  lead  to  the  introduction  of  improper 
evidence,  by  putting  in  issue  matters  which  are  foreign  to  the  cause  :  Ibid. 
The  bill  should  not  set  forth  deeds  or  other  documents  in  hcec  verba,  but 
only  so  much  thereof  as  is  material  to  the  point  in  question  ;  and  matter 
of  inference  or  argument  is  impertinent :  Hood  v.  Inman,  4  Johns.  Ch. 
437.  ■  See  also  Woods  v.  Morrell,  1  Id.  103.  Disparaging  or  abusive 
words  are  not  "  scandalous  "  unless  they  are  also  impertinent :  Henry  v. 
Henry,  Phill.  (N.  C.)  Eq.  334. 

The  proper  remedy  for  verboseness  is  by  motion  to  strike  out :  Williams 
V.  Sexton,  19  Wis.  42. 


OF     THE     BILL.  609 

intervening  between  the  statements  and  the  charges, 
called  the  charge  of  confederacy.  This  is  an  allegation 
that  the  defendants  are  confederating  with  certain  un- 
known parties  to  refuse  justice  to  the  plaintiff.  And  we 
find  also  another  allegation  following  the  charging  part, 
called  the  averment  of  jurisdiction,  which  alleges  that  the 
plaintiff  can  only  obtain  his  remedy  in  the  Court  of 
Chancery.  The  probability  is  *that  these  forms  r^oA-T-i 
originated  in  the  once  doubtful  state  of  the 
jurisdiction ;  at  the  present  time  they  are  unnecessary, 
and  are  fast  falling  into  disuse. (7^)^ 

The  intei*rogatories  are  a  series  of  questions  intended 
to  obtain  discovery  in  aid  of  the  plaintiff's  case,  and  must 
be  directed  to  facts  previously  stated  or  charged.  They 
are  prefaced  by  a  prayer  that  the  defendants  may,  if  they 
can,  show  why  the  plaintiff  should  not  be  relieved,  and 
may  answer  on  oath  such  of  the  interrogatories  after- 
wards numbered  and  set  forth,  as  by  a  note  at  the  end  of 
the  bill  they  are  respectively  required  to  answer.  The 
numbered  interrogatories  follow,  and  at  the  foot  of  the 
bill  a  note  is  added,  informing  each  defendant  which  of 
them  he  must  answer. 

The  old  bills  in  Chancery  contained  no  special  inter- 
rogatories, but  merely  required  that  the  defendant  should 
answer  the  bill,  and  he  was  bound  without  further  ques- 
tioning to  answer  the  whole.     The  interrogatories  were 

(A)  Mitf.  on  Plead.  40-41. 

_ 

*  By  the  rules  in  Chancery  in  many  of  the  states,  the  confederacy  and 
jurisdiction  clauses  are  expressly  made  unnecessary :  Rules  U.  S.  Courts, 
No.  xxi ;  Penn.  xvii.  The  confederacy  clause  is  insuflBcient,  even  on  de- 
murrer, to  avoid  the  effect  of  lapse  of  time  ;  as  an  allegation  of  fraud  it  is 
entirely  inoperative  and  useless :  Williams  v.  Presb.  Soc,  1  Ohio  St.  N. 
S.  505. 

39 


610  ADAMS's    DOCTRINE    OF    EQUITY. 

afterwards  added  to  prevent  misapprehension  or  evasion, 
by  inquiring  not  only  as  to  the  facts  specifically  alleged, 
hut  as  to  circumstances  of  possible  variation,  e.  g.,  not 
only  whether  the  defendant  had  received  a  specified  sum, 
which  might  perhaps  be  evaded  b}^  a  bare  denial,  but 
"whether  he  or  any,  and  what  person  by  his  order  or  for 
his  use  had  received  that  sum,  or  any  and  what  part 
thereof,  or  any  and  what  sum."  They  were  therefore  at 
first  merely  supplemental,  framed  to  prevent  an  evasive 
answer,  but  not  exempting  the  defendant  from  answering 
the  bill  itself,  and  they  were  accordingly  prefaced  by  the 
words  "  that  the  said  defendant  may  answer  the  bill,  and 
more  especially  that  he  may  answer  the  interrogatories." 
This,  however,  was  inconvenient  in  two  respects :  first, 
because  it  compelled  trustees,  and  other  persons  who  were 
affected  by  a  portion  of  the  bill  only,  to  put  in  a  long  and 
expensive  answer  to  the  whole,  or  to  select  the  material 
parts  on  their  own  responsibility ;  and  secondly,  because 
r*8081  ^^^^  special  interrogatories  had  become  Univer- 
sal, defendants  frequently  did  not  look  beyond 
them,  and  occasionally  got  into  difficulty  by  leaving  un- 
answered some  statement  or  charge  to  which  either 
accidentally  or  intentionally,  the  plaintifi'  had  omitted  to 
interrogate.^ 

^  Where  a  defendant  submits  to  answer  at  all,  he  is  bound  to  admit  or 
deny  all  the  facts  stated  in  the  bill,  with  all  material  circumstances, 
though  not  specially  interrogated  for  that  purpose ;  the  general  interroga- 
tory in  the  bill  "  that  the  defendant  may  full  answer  make,"  &c.,  being 
sufficient :  Methodist  Church  v.  Jacques,  1  Johns.  Ch.  65  ;  Neale  v.  Hag-^ 
thorp,  3  Bland  551 ;  Hagthorp  ».  Hook,  1  Gill  &  J.  270 ;  Tucker  v.  Che-' 
shire  R.  R.,  1  Fost.  (N.  II.)  29 ;  Wootten  v.  Burch,  2  Md.  Ch.  190;  Ames 
V.  King,  9  Allen  (Mass.)  258,  He  is  bound  to  answer  as  to  his  know- 
ledge, or  if  he  has  no  knowledge  of  the  facts,  then  as  to  his  information 
and  belief:  Bailey  v.  Wilson,  1  Dev.  &  Bat.  Ch.  182,  187  ;  Devereaux  v. 
Cooper,  11  Verm.  103.     But  a  defendant  is  not  bound  to  answer  an  inter- 


OF     THE     BILL.  611 

These  objections  are  remedied  by  the  present  regula- 
tion, which  exempts  a  defendant  from  answering  any 
statement  or  charge  unless  specially  interrogated  there- 
to, (z)^ 

The  fourth  part  of  the  bill  is  the  prayer  for  relief,  or 
as  it  would  be  more  correctly  termed,  the  statement  of 
relief  required  The  only  portion  of  a  bill  which  can  be 
accurately  called  a  prayer,  is  the  concluding  part  or  prayer 
of  process,  calling  on  the  Court  to  issue  the  subpoena. 
After  the  statements  and  charges  are  completed,  the  bill 
does  not  go  on  to  say,  "  your  orator  therefore  prays  that 

[i]  Woodroffe  v.  Daniel.  10  Siin.  243 ;  1  Dan.  C.  P.  347-360. 

rogatory  not  warranted  by  some  matter  contained  in  a  former  part  of  the 
bill :  Mechanics'  Bank  v.  Lynn,  1  Peters  376 ;  see  also  on  this  subject 
McDonald  v.  McDonald,  16  Verm.  630 ;  Morris  v.  Parker,  3  Johns.  Ch. 
297  ;  Smith  v.  Lasher,  5  Id.  247  ;  Pettit  v.  Candler,  3  Wend.  618  ;  Phillips 
V.  Prevost,  4  Johns.  Ch.  205  ;  Cuyler  v.  Bogert,  3  Paige  186 ;  Utica  Insur- 
ance Co.  r.  Lynch,  Id.  210;  Davis  v.  Mapes,  2  Id.  105.  Where  suspi- 
cious circumstances,  fraud,  and  collusion  are  charged  in  a  bill,  the  de- 
fendant must  expose  not  only  his  motives,  but  his  secret  designs,  his 
"unuttered  thoughts:"  Mechanics'  Bank  v.  Levy,  1  Edw.  Ch.  316. 
Where  a  bill  charges  generally  that  certain  deeds  were  fraudulent  and 
void,  and  also  propounds  special  interrogatories  based  upon  some  of  the 
allegations  only,  the  defendants  have  the  right  to  answer  all  the  allega- 
tions, whether  specially  interrogated  or  not :  Glenn  v.  Grover,  3  Md.  212. 

^  A  similar  rule  exists  in  the  United  States  Courts  (xl.)  :  see  Wilson  v. 
Stolley,  4  McLean  272  ;  and  probably  in  some  of  the  states  ;  though  see 
contra,  7  Foster  440;  Pitts  v.  Hooper,  16  Ga.  442.  And  the  general  rule 
that  a  defendant  who  submits  to  answer,  must  answer  fully,  is  now  so  far 
modified,  that  he  may  protect  himself  by  answer  to  to  the  same  extent  as 
he  might  by  plea  of  discovery :  Rule,  xxxix.  U.  S.  In  Pennsylvania 
(Rule  xxxix.)  specific  interrogatories  are  not  included  in  the  bill,  but  are 
filed  separately. 

Interrogatories  for  the  examination  of  a  plaintiff  are  on  a  different 
footing  from  those  for  the  examination  of  a  defendant  in  this  respect,  that 
a  plaintiff  is  not  entitled  to  discovery  of  the  defendant's  case,  but  a  de- 
fendant may  ask  any  questions  tending  to  destroy  the  plaintiff's  claim : 
Hoffman  v.  Postill,  4  Ch,  App.  L.  R.  673.  In  other  respects,  the  general 
rule  applies,  that  he  who  is  bound  to  answer  must  answer  fully. 


612  ADAMS's    DOCTRINE    OF    EQUITY. 

he  may  have  such  and  such  relief,"  hut  it  says,  "  to  the 
end  therefore  that  the  defendant  may  answer  the  inter- 
rogatories, and  that  your  orator  may  have  the  specified 
relief,  may  it  please  your  lordship  to  grant  a  "writ  of  sub- 
poena,  requiring  the  defendant  to  appear  by  a  certain  day, 
and  to  answer  the  bill,  and  abide  the  decree  of  the  Court." 
The  only  thing  which  the  Court  is  asked  to  do,  or  which 
can  be  called  a  prayer  is,  "  to  grant  the  writ."  The  ob- 
taining an  answer  and  subsequent  relief  are  the  reasons 
why  the  writ  is  asked,  but  are  not  themselves  the  thing 
asked  for;  and  this  view  exactly  coincides  with  the  state- 
ment made  in  the  outset  of  the  present  treatise,  that  the 
writ  of  subpoena  was  that  which  from  the  first  gave  effi- 
ciency to  the  Court,  and  which,  in  all  the  opposing  peti- 
tions, was  the  uniform  subject  of  complaint.  When  the 
writ  of  subpoena  has  issued,  the  defendant  is  obliged  to 
answer  the  interrogatories  and  to  abide  by  any  decree 
which  the  Court  may  make ;  and  the  statement  in  the  bill 
as  to  the  particular  relief  required  is  a  mere  guide  in 
framing  the  decree. 

The  old  bills  in  Chancery  did  not  contain  any  special 
statement  of  relief,  but  only  what  is  called  the 
Sprayer  for  general  relief,  viz.,  "  that  your  orator 
may  have  such  relief  in  the  premises  as  the  nature  of 
the  case  may  require,  and  to  your  lordship  shall  seem 
fit."  It  is  said  that  such  a  prayer  would  still  be  suffi- 
cient; but  the  uniform  practice  is  to  insert  a  special 
prayer,  and  to  conclude  with  the  prayer  for  general  relief. 

This  latter  prayer  can  never  be  safely  omitted,  because 
if  the  plaintiff  should  in  his  special  prayer  mistake  the 
due  relief,  it  may  be  given  under  the  general  prayer,  if 
consistent  with  that  which  is  actually  prayed.^     If  it  be 

»  See  Colton  v.  Ross,  2  Paige  396  ;  Wilkin  v.  Wilkin,  1  Johns.  Ch.  Ill  ; 
Allen  V.  Coffman,  1  Bibb  469  ;  Brown  v.  McDonald,  1  Hill's  Ch.  302  ;  Barr 


[*309]   ^ 


OF     THE     BILL.  613 

inconsistent  it  cannot  be  obtained  ;^  and,  therefore,  if  the 
plaintiff  doubt  as  to  the  proper  relief,  he  may  frame  his 

V.  Haseldon,  10  Rich.  Eq.  53  ;  Kelly  v.  Paine,  18  Ala.  371 ;  Thomas  v.  Ell- 
maker,  1  Pars.  Eq.  99  ;  Stone  r.  Anderson,  6  Foster  506.  But  the  relief 
to  be  given  under  a  general  prayer  in  a  bill  must  be  agreeable  to  the  case 
made  by  the  bill,  and  not  different  from,  or  inconsistent  with  it:  Chalmers 
r.  Chambers,  6  Har.  &  J.  29  ;  Wilkin  v.  Wilkin,  sup. ;  Franklin r.  Osgood, 
14  Johns.  527  :  English  v.  Foxall,  2  Peters  595  ;  McCosker  c.  Brady,  1 
Barb.  Ch.  329  ;  Smith  v.  Trenton  Falls  Co.,  3  Green  Ch.  505 ;  Danforth  v. 
Smith,  23  Verm.  247 ;  Hilleary  v.  Hurdle,  6  Gill  105  ;  Dunnock  r.  Dun- 
nock,  3  Md.  Ch.  140 ;  Hitch  v.  Davis.  Id.  266 ;  Land  v.  Cowan,  19  Ala. 
297  ;  Cawley  v.  Poole,  1  Hem.  &  M.  50.  But  under  the  general  prayer, 
any  relief  warranted  by  the  case  as  set  forth  in  the  bill  may  be  granted, 
though  not  orally  asked  for :  Lingan  v.  Henderson,  1  Bland  251 ;  Mc- 
Glotblin  r.  Hemery,  44  Mo.  350;  Kirksey  r.  Means,  42  Ala.  426  ;  Milten- 
berger  v.  Morrison,  39  Mo.  71 ;  Slemmer's  Appeal,  58  Penn.  St.  155 
although  such  relief  could  be  had  at  law :  Bullock  v.  Adams,  20  N.  J.  Eq. 
367. 

^  No  relief  can  be  granted  under  the  general  prayer,  entirely  distinct 
from  and  independent  of  the  special  relief  prayed :  Thomason  v.  Smithson, 
7  Porter  144  ;  Foster  v.  Cook,  1  Hawks  509  ;  Chalmers  ».  Chambers,  6  Har. 
&  J.  29  ;  Sheppard  r.  Starke,  3  Munf.  29 ;  Butler  v.  Durham,  2  Kelley  414  ; 
Chapman  t".  Chapman,  13  Beav.  308  ;  Dunnock  v.  Dunnock,  3  Md.  Ch. 
140 ;  Thomas  v.  Ellmaker,  1  Pars.  Eq.  99 ;  Howell  v.  Sebring,  1  McCart. 
84.  Nor  will  the  bill  b«  amended  so  as  to  introduce  a  prayer  for  relief  in- 
consistent with  the  original  prayer :  Thomas  v.  Ellmaker,  ut  supr. ;  Pen- 
sacola  R.  R.  t'.  Spratt,  12  Florida  26;  sed  vide  Bailey  ».  Burton,  8  Wend. 
339 ;  wherein  it  is  held  that  under  the  general  prayer,  the  complainant 
is  entitled  to  any  relief  consistent  with  the  case  made,  though  inconsistent 
with  the  specific  relief  prayed  for.     See  Kelley  v.  Payne,  18  Ala.  371. 

In  bills  of  equity  seeking  relief,  if  any  part  of  the  relief  sought  be  of  an 
equitable  nature,  the  court  will  retain  the  bill  for  complete  relief:  Traip 
r.  Gould,  15  Maine  82.  Relief  can  only  be  granted  upon  the  facts  alleged 
in  the  bill :  Maher  v.  Bull,  44  111.  97  ;  Carmichael  v.  Reed,  45  Id.  108. 

If  a  bill  contains  no  prayer,  either  for  specific  or  general  relief,  it  is  con- 
sidered as  a  bill  of  discovery  merely,  although  the  word  "  decree"  is  erro- 
neously inserted  in  the  prayer  for  process  of  subpoena  ;  but  if  the  bill  prays 
any  relief  whatever  against  a  defendant,  who  is  made  a  party  for  the  pur- 
pose of  discovery  only,  such  prayer  makes  it  a  bill  for  relief  as  well  as  dis- 
covery, as  to  such  defendant,  and  authorizes  him  to  put  in  an  answer  con- 
taining a  full  defence  :  Mclntyre  ».  Union  College,  6  Paige  239 ;  see  Smith 


614  ADAMS's    DOCTRINE    OF    EQUITY. 

prayer  in  the  alternative,  to  have  either  one  relief  or  the 
other,  as  the  Court  shall  decide.^  In  the  case  of  chari- 
ties and  infants  the  proper  directions  will  be  given,  with- 
out regarding  the  language  of  the  prayer,  (k) 

The  principal  rules  as  to  this  portion  of  the  hill,  are  that 
it  should  point  out  with  reasonable  clearness  what  relief 
is  asked,  that  it  should  not  combine  distinct  claims  against 
the  same  defendant,  and  that  it  should  not  unite  in  the 
same  suit  several  defendants,  some  of  whom  are  uncon- 
nected with  a  great  portion  of  the  case.  If  the  prayer  is 
objectionable  on  either  of  the  two  latter  grounds,  the  bill 
is  termed  multifarious.  (/) 

Multifariousness  of  the  first  kind,  sometimes  called  a 
misjoinder  of  claim,  is  where  the  plaintiff  has  several 

[k]  Mitf.  on  Pleading  38,  39 ;  1  Dan.  C.  P.  360-366 ;  Cruikshank  v. 
McVicar,  8  Beav.  106,  110. 

(1)  1  Dan.  C.  P.  320-331 ;  [Story's  Equity  Pleading  §§271-286.] 


t'.  Smith,  4  Randolph  95.  A  bill  for  discovery  which  concludes  with  a 
prayer  that  such  other  order  might  be  made  upon  the  said  defendant,  as 
the  nature  of  the  case  might  require,  is,  nevertheless,  a  simple  bill  of  dis- 
covery :  Southeastern  R.  R.  Co.  v.  Submarine  Telegraph  Co.,  17  Jur. 
1044. 

'  Upon  the  subject  of  bills  framed  with  a  double  aspect,  where  the  com- 
plainant is  in  doubt  whether  he  is  legally  entitled  to  one  kind  of  relief  or 
another,  upon  the  facts  of  the  case  as  stated  in  the  bill,  see  Strange  v.  Wat- 
son, 11  Ala.  324;  Colton  v.  Ross,  2  Paige  396 ;  Foster  v.  Cook,  1  Hawks 
509 ;  Lingan  v.  Henderson,  1  Bland  Ch.  252 ;  McConnell  v.  McConnell, 
11  Verm.  290;  Pensenneau  v.  Pensenneau,  22  Mo.  27.  So  also,  where  the 
complainant  is  entitled  to  relief  of  some  kind  against  the  defendants,  upon 
the  facts  stated  in  his  bill,  if  the  nature  or  kind  of  relief  to  which  he  is  en- 
titled depends  upon  the  existence  of  a  fact  of  which  he  is  ignorant,  he  may 
allege  his  ignorance  of  such  fact,  and  may  frame  his  prayer  for  relief  in 
the  alternative,  so  as  to  obtain  the  appropriate  relief,  according  as  the  fact 
shall  appear  at  the  hearing  of  the  cause:  Lloyd  v.  Brewster,  4  Paige  537  ; 
McCosker  v.  Brady,  1  Barb.  Ch.  329 ;  see  also,  Durling  v.  Hammar,  20 
N.  J.  (Eq.)  220. 


OF     THE    BILL.  '    615 

distinct  claims  against   the  same   defendant,  and  prays 
relief  in  a  single  suit  in  respect  to  all,^  e.  g.,  if  a  corpora- 

^  It  is  extremely  difficult,  if  not  impracticable,  to  lay  down  any  general 
rule  on  the  subject  of  multifariousness.  The  Court  -rt-ill  be  governed  by 
considerations  of  convenience  in  particular  circumstances :  Dunn  v.  Cooper, 
3  Md.  Ch.  4G.  The  objection  is  discouraged  where  it  might  defeat  the  ends 
of  justice:  Marshal  v.  Means,  12  Ga.  61.  A  Court  of  Chancery  allows 
distinct  and  separate  causes  of  complaint  between  the  same  parties  to  be 
joined  in  one  suit,  unless  it  is  apparent  that  the  defence  will  be  seriously 
embarrassed  by  confounding  different  issues  and  proofs  in  the  litigation: 
Nourse  v.  Allen,  4  Blatchf.  C.  C.  376.  A  bill  is  multifarious,  as  the  term 
is  generally  understood,  where  there  is  a  misjoinder  of  distinct  and  inde- 
pendent causes  of  action  :  Gardiner,  J.,  in  Brady  v.  McCosker,  1  Comst. 
221  ;  Carmichael  v.  Browder,  3  How.  (Miss.)  252;  Savage  v.  Benham,  17 
Ala.  119;  Mcintosh  v.  Alexander,  16  Ala.  87;  Boyd  v.  Hoyt,  5  Paige  65; 
Marshal  v.  Means,  12  Ga.  61  ;  and  see  Cauley  v.  Lawson,  5  Jones  Eq.  132 ; 
Allen  V.  Miller,  4  Id.  146 ;  Tomlinson  v.  Claywell,  Id.  317 ;  Hughes  v. 
Cook,  34  Beav.  407 ;  Bent  t.  Yardley,  2  Hem.  &  M.  602;  Bouck  v.  Bouck, 
L.  R.  2  Eq.  19.  Charging  two  sources  of  right  by  a  plaintiff  renders  a  bill 
multifarious  :  Cumberland  Valley  R.  R.  Appeal,  62  Penn.  St.  218.  Un- 
connected demands  against  different  estates  cannot  be  united  in  the  same 
bill,  though  the  defendant  is  the  executor  in  both :  Daniel  et  al.  v.  Mor- 
rison's Ex'r.,  6  Dana  186.  So  a  bill  for  an  account  against  two  dis- 
tinct partnerships,  though  one  of  the  defendants  is  a  partner  in  both,  is 
multifarious :  Griffin  v.  Morrell,  10  Md.  364.  So  a  bill  combining  indi- 
vidual claims  with  claims  in  a  representative  capacity  :  Carter  v.  Treadwell, 
3  Story  25 ;  Bryan  v.  Blythe  et  al.,  4  Blackf.  249  ;  Davoue  v.  Fanning,  4 
Johns.  Ch.  199;  Latting  v.  Latting,  4  Sandf.  Ch.  31;  May  u.  Smith,  1 
Busbee  Eq.  196.  But  a  bill  filed  by  one  executor  of  two  estates  for  direc- 
tions, &c.,  where  the  affairs  of  the  estates  are  so  blended  that  it  is  necessary 
to  proceed  under  both  bills  at  once,  will  not  be  multifarious :  Carter  v. 
Balfour,  19  Ala.  814. 

Where,  in  addition  to  the  charge  of  adultery,  a  bill  charges  the  husband 
with  cruel  treatment,  which  renders  it  unsafe  for  the  complainant,  the  wife, 
to  cohabit  with  him,  and  the  bill  is  so  framed  as  to  entitle  her  to  a  decree 
of  separation,  if  she  fails  to  establish  the  adultery  charged  in  the  bill,  such 
bill  is  multifarious:  Rose  r.  Rose,  11  Paige  166;  Johnson  v.  Johnson,  6 
Johns.  Ch.  163 ;  Mulock  v.  Mulock,  1  Edw.  Ch.  14 ;  Pomeroy  v.  Poraeroy, 
1  Johns.  Ch.  606.  But  where  a  wife  files  a  bill  for  divorce  against  her 
husband,  on  the  ground  of  adultery,  containing  a  prayer  for  relief  which 
is  adapted  only  to  a  charge  of  adultery,  the  bill  is  not  rendered  multi- 
farious by  the  insertion  therein  of  charges  of  unkind  treatment  or  cruel 


616  ADAMS's    DOCTRINE     OF    EQUITY. 

tion  were  to  hold  one  estate  for  public  purposes,  and  an- 
other for  private  charity,  and  a  bill  were  filed  on  account 
of  both.  In  this  case  the  objection  is  that  the  defendant 
would  be  compellable  to  unite  unconnected  matters  in  his 
answer  and  defence,  and  thus  the  proofs  applicable  to  each 
would  be  liable  to  confusion;  delays  might  be  occasioned 
by  waiting  *for  the  one  when  the  other  was  ripe  i-^q-i  at 
for  hearing,  and  different  decrees  and  proceedings 
might  ultimately  be  required.  The  Court,  therefore,  on 
the  ground  of  convenience,  will  not  permit  such  a  joinder. 
But  the  rule,  being  one  of  convenience,  only,  is  not  abso- 
lutely binding,  and  may  be  dispensed  with  if  the  claims 


usage:  Beach  v.  Beach,  11  Paige  161.  A  petition,  containing  in  the  same 
count  a  prayer  for  equitable  relief  and  also  a  prayer  for  rents  and  profits 
and  for  possession  of  the  premises,  is  bad  for  misjoinder:  Young  v.  Cole- 
man, 43  Mo.  179.  A  bill  in  equity,  alleging  that  the  defendant  obtained  a 
policy  of  insurance  from  the  company  by  fraud,  and  praying  that  a  com- 
mission may  issue  for  the  examination  of  "witnesses,  and  that  the  policy 
may  be  surrendered  to  be  cancelled,  and  for  other  relief,  is  not  multi- 
farious:  Commercial  Ins.  Co.  v.  McLoon,  14  Allen  (Mass.)  351. 

A  bill  is  not  multifarious  where  it  sets  up  one  substantial  ground  of 
relief,  and  also  another  on  which  no  relief  can  be  had  or  is  asked :  Pleasants 
V.  Glasscock,  1  Sm.  &  M.  Ch.  17;  Varick  v.  Smith,  5  Paige  137;  Mayne  v. 
Griswold,  3  Sandf.  S.  C.  4  A;  Carpenter  v.  Hall,  18  Ala.  439  ;  McCabe  v. 
Bellows,  1  Allen  269 ;  Richards  v.  Pierce,  52  Maine  562.  So  of  a  bill 
brought  by  several  persons  claiming  under  a  common  title,  but  in  different 
shares  and  proportions :  Shields  v.  Thomas,  18  How.  (U.  S.)  253. 

Where  there  is  a  joinder  of  a  legal  and  an  equitable  claim,  and  a  prayer 
for  relief  as  to  both,  the  bill  is  not  multifarious :  Varick  v.  Smith,  5  Paige 
137;  Carpenter  v.  Hall,  18  Ala.  439. 

To  authorize  the  dismissal  of  a  bill  on  final  hearing  on  account  of  a 
misjoinder  of  complaints,  it  must  be  of  such  whose  interests  are  so  diverse 
that  they  cannot  be  included  in  one  decree,  or  at  least  must  differ  so  widely 
as  to  affect  the  propriety  of  the  decree :  Michan  v.  Wyatt,  21  Ala.  813. 
In  a  bill  the  various  matters  charged  are  like  counts  in  a  declaration, 
which,  if  all  good,  although  variant  in  their  contents,  but  not  misjoinders, 
a  judgment  on  either  will  be  sustained  :  Cumberland  Valley  R.  R.  Appeal, 
62  Penn.St.  218. 


OF    THE    BILL.  617 

be  SO  far  connected  that  a  single  suitis  more  convenient,  (wz)^ 
A  converse  principle  restrains  the  plaintiff  from  unduly 
splitting  up  a  cause  of  suit,  e.  g.,  by  filing  a  bill  for  part 
of  an  account  without  seeking  to  have  the  whole  taken,  or 
to  have  the  present  profits  of  a  partnership  ascertained 
and  distributed  whilst  contemplating  the  continuance  of 
the  partnership  business,  (w) 

Multifariousness  of  the  second  kind  is  where  a  plain- 
tiff, having  a  valid  claim  against  one  defendant,  joins 
another  person  as  defendant  in  the  same  suit,  with  a 
large  part  of  which  he  is  unconnected,^  e.  g.,  if  a  bill 

(m)  Shackell  v.  Macaulay,  2  S.  &  S.  79  ;  Attorney-General  v.  Goldsmiths' 
Company,  5  Sim.  670  ;  Attorney-General  v.  Merchant  Tailors'  Company,  1 
M.  &  K.  189 ;  Campbell  v.  Mackay,  1  M.  &  C.  603,  618 ;  1  Dan.  C.  P. 
326-329. 

(n)  Mitf.  on  Pleading  183 ;  1  Dan.  C.  P.  316-319. 


^  See  Hinton  v.  Cole,  3  Humph.  656 ;  Whitney  v.  Whitney,  5  Dana  327  ; 
Lynch  v.  Johnson,  2  Litt.  98  :  Halbert  v.  Grant,  4  Monr.  580  ;  Hart  v. 
McKeen,  Walk.  Ch.  417  ;  Carroll  v.  Roosevelt,  4  Edw.  Ch.  211 ;  Dunn  v. 
Cooper,  3  Md.  Ch.  46  ;  Nourse  v.  A  len,  4  Blatch.  C.  C.  376.  A  bill  framed 
with  a  twofold  aspect,  either  for  a  specific  delivery  of  the  property,  or  an 
enforcement  of  a  supposed  lien,  is  not  multifarious :  Murphy  v.  Clark,  1 
Sm.  &  M.  221  ;  Baines  i'.  McGee,  Id.  208. 

*  There  is  no  o;eneral  rule  by  which  to  determine  whether  a  bill  is,  in 
this  second  sense,  multifarious  or  not ;  but  it  must  be  left  to  the  discretion 
of  the  court  under  the  circumstances  of  the  case  :  Oliver  ».  Piatt,  3  How. 
U.  S.  333,  411  ;  Gaines  v.  Chew,  2  Id.  619;  Marshall  v.  Means,  12  Ga.  61  ; 
Butler  V.  Spann,  27  Miss.  234 ;  Fleming  v.  Gilmer,  35  Ala.  62 ;  Bowers  ». 
Keesecher,  9  Iowa  422;  Fogg  v.  Rogers,  2  Cold.  (Tenn.)  290. 

Multifariousness,  properly  speaking,  is  where  diflFerent  matters,  having 
no  connection  with  each  other,  are  joined  in  a  bill  against  several  defend- 
ants, a  part  of  whom  have  no  interest  in,  or  connection  with,  some  of  the 
distinct  matters  for  which  the  suit  is  brought ;  so  that  such  defendants  are 
put  to  the  unnecessary  trouble  and  expense  of  answering  and  litigating 
matters  stated  in  the  bill,  in  which  they  are  not  interested,  and  with  which 
they  have  no  connection  :  Newland  v.  Rogers,  3  Barb.  Ch.  432  ;  Ryan  r. 
Shawneytown,  14  111.  20. 

See  in  illustration  of  this  statement,  Stuart's  Heirs  v.  Coalter,  4  Rand. 
74  ;  Coe  t'.  Turner,  5  Conn.  86  ;  Boyd  v.  Hoyt,  5  Paige  65  ;  Swift  v.  Eck. 


618  ADAMS's    DOCTRINE    OF    EQUITY. 

/ 

were  to  be  brought  by  one  tenant  in  common  against 
another  for  a  partition,  and  also  against  a  third  person 
to  set  aside  a  lease  from  the  plaintiff.  It  is  obvious  that 
the  second  tenant  in  common  is  only  concerned  with  the 
partition,  and  ought  not  to  be  involved  in  ligitation  about 
the  lease ;  and  he  might  object  to  the  two  matters  being 
united,  as  putting  him  to  unnecessary  expense.  But  in 
this  case,  as  in  the  preceding  one,  if  the  nature  of  the 
transactions  make  a  single  suit  convenient,  the  objection 
will  not  be  sustained,  (o)^ 

[o)  Whaley  v.  Dawson,  2  Sch.  &  L.  367  ;  Salvidge  v.  Hyde,  Jac.  151 ; 
Attorney-General  v.  Merchant  Tailors'  Company,  1  M.  &  K.  189 ;  Camp- 
bell V.  Mackey,  1  M.  &  C.  603,  620 ;  Sheehy  v.  Muskerry,  7  CI.  &  F.  1  ; 
Mitf.  181  ;  Attorney-General  v.  Cradock,  3  M.  &  C.  85;  Attorney-General 
V.  Corporation  of  Poole,  4  Id.  17-31 ;  Parr  v.  Attorney-General,  8  CI.  &  F. 
409  ;  1  Dan.  C.  P.  320-326. 

ford,  6  Id.  22 ;  Jackson  v.  Forrest,  2  Barb.  Ch.  566 ;  Morton  v.  Weil,  33 
Id.  30  ;  Silcox  V.  Nelson,  1  Geo.  Decis.  24  ;  Johnson  v.  Brown,  2  Humph. 
327 ;  Bruton  v.  Rutland,  3  Id.  435 ;  Hickman  v.  Cooke,  Id.  640  ;  Glamorgan 
V.  Guisse,  1  Miss.  141  ;  Ingersoll  v.  Kirby,  Walk.  Ch.  65  ;  Nail  v.  Mobley, 

9  Ga.  278 ;  Felder  v.  Davis,  17  Ala.  418  ;  Ayers  v.  Wright,  8  Ired.  Eq. 
229;  Hammond  v.  Michigan  State  Bank,  Walk.  Ch..  214  ;  New  England 
Bank  v.  The  Newport  Steam  Factory  Co.,  6  R.  I,  154;  Williams  v.  Neel, 

10  Rich.  Eq.  338  ;  Hunton  v.  Piatt,  11  Mich.  264  ;  Brinkerhoflf  v.  Brown, 
6  Johns.  Ch.  139  ;  Metcalf  v.  Cady,  8  Allen  587  ;  Waller  v.  Taylor,  42  Ala. 
297 ;  Kennebec,  &c.,  R.  R.  v,  Portland,  &c.,  R.  R.,  54  Maine  173 ;  Wilson 
V.  Castro,  31  Cal.  420. 

^  Where  the  interests  of  different  parties  are  so  complicated  in  different 
transactions,  that  entire  justice  could  not  be  conveniently  done  without 
uniting  the  whole,  the  bill  is  not  multifarious :  Oliver  v.  Piatt,  3  How.  U. 
S.  411.  The  objection  of  multifariousness  is  confined  to  cases  where  the 
cause  of  each  defendant  is  entirely  distinct  and  separate  in  its  subject- 
matter  from  that  of  his  co-defendants  :  Kennedy  V.  Kennedy,  2  Ala.  571. 
A  bill  against  the  executors  of  an  estate,  and  all  those  who  purchased  from 
them,  is  not  upon  that  account  alone  multifarious :  Gaines  v.  Chew,  2  How. 
U.  S.  619  ;  Patterson  v.  Gaines,  6  Id.  582;  so  a  bill  against  the  personal 
representatives  and  heirs  of  a  party  to  a  contract,  for  an  account  by  the  for- 
mer under  it,  and  specific  execution  of  it  by  the  latter,  is  not  demurrable  : 
Cocke  V.  Evans^  9  Yerg.  287.  A  bill  is  not  multifarious,  where  one  general 


OF     THE     BILL.  619 

The  fifth  and  last  part  of  a  bill  is  the  prayer  of  pro- 
cess, which  asks  that  a  writ  of  subpoena  may  issue,  di- 

right  is  claimed  by  the  plaintiff,  although  the  defendants  may  have  sepa- 
rate and  distinct  rights  :  Dimmock  v.  Bixby,  20  Pick.  368  ;  Bugbee  v.  Sar- 
gent, 23  Maine  269  ;  Curtis  v.  Tyler,  9  Paige  432  ;  Bell  v.  Woodward,  42 
N.  H.  190;  Chase  v.  Searles,  45  Id.  511 ;  Tucker  v.  Tucker,  29  Mo.  355  ; 
and  see  Walsham  v.  Stainton,  1  De  G.,  J.  &Sm.  678  ;  Kunkell  ».  Markell, 
26  Md.  390.  Nor  because  the  bill  states  more  than  one  ground  in  support 
of  the  same  claim  :  Barnett  r.  Woods,  2  Jones.  Eq.  198.  A  bill  is  not 
multifarious  which  avers  that  the  complainants  are  several  owners  of  dif- 
ferent parcels  of  goods  which  have  been  obtained  from  them  by  fraud 
through  distinct  and  separate  transactions,  by  a  person  who  has  pledged 
them  to  secure  an  advance,  if  the  bill  offers  to  restore  the  advance  :  Cole- 
man V.  Barnes,  5  Allen  374.  To  render  a  bill  multifarious,  it  must  contain 
not  only  separate  and  distinct  matters,  but  such  that  each  entitles  the 
complainant  to  separate  equitable  relief.  It  is  not  so,  if  it  be  single  as  to 
the  subject-matter  and  object  thereof,  and  the  relief  sought,  if  all  the  de- 
fendants are  connected,  though  differently,  with  the  whole  subject  of  dis- 
pute :  Watson  v.  Cox,  1  Ired.  Eq.  389  ;  Wheeler  v.  Clinton  Can.  Bank, 
Harring.  Ch,  449 ;  Cornwell  v.  Lee,  14  Conn.  524  ;  Robertson  v.  Stevens 

I  Ired.  Eq.  247;  Parish  v.  Sloan,  3  Id.  607  ;  Wilcox  v.  Mills,  1  S.  &  M. 
Ch.  85  ;  Donelson's  Adm'rs.  v.  Posey,  13  Ala.  752 ;  Heirs  of  Holman  v. 
Bank  of  Norfolk,  12  Id.  369  ;  Worthy  v.  Johnson,  8  Ga.  238  ;  Larkins  v. 
Biddle,  11  Ala.  252  ;  Martin  v.  Martin,  13  Mo.  36  ;  Booth  r.  Stamper,  10 
Ga.  109;  Foss  v.  Ilaynes,  31  Maine  81 ;  Doub  v.  Barnes,  1  Md.  Ch.  127; 
White  V.  Hall,  27  Miss.  419. 

Praying  relief  against  some  of  the  defendants  in  a  suit,  as  to  whom  the 
complainant  is  not  entitled  to  relief,  but  to  a  discovery  merely,  does  not 
render  a  bill  multifarious :  Many  v.  Beekman  Iron  Co.,  9  Paige  188.  Where 
a  bill  is  filed  against  the  representatives  of  a  deceased  partner,  to  obtain 
satisfaction  of  a  copartnership  debt  out  of  the  estate  of  the  decedent,  the 
joining  of  the  surviving  partner,  who  is  insolvent,  with  them,  as  a  defend- 
ant, does  not  render  the  bill  multifarious:  Butts  v.  Genung,  5  Paige  254  ; 
see  also,  Wells  v.  Strange,  5  Ga.  22. 

The  proper  form  in  which  to  object  to  a  bill  for  multifariousness  is  by 
demurrer  ;  the  filing  an  answer  and  going  into  the  testimony  as  to  the 
merits,  is  a  waiver  of  the  objection,  and  it  cannot  be  made  on  appeal,  after 
a  decree  j3ro  co;i/e«so  below :  Gibbs  r.  Clagett,  2  Gill  &  J.  14;  Grove  v. 
Fresh,  9  Id.  280  ;  Bryan  v.  Blythe  et  al.,4  Blackf.  249  ;  Avery  r.  Kellogg, 

II  Conn.  562  ;  Wellborn  v.  Tiller,  10  Ala.  305;  Luckett  v.  White,  10  Gill 
&  J.  480;  Abraham  v.  Plestoro,  3  Wend.  5.38,  547;  Thurman  c.  Shelton, 
lOYerg.  383;  Buffalow  r.  Buffalow,  2  Ired.  Eq.   113;  BettsV  Betts,  18 


020  ADAMs's    DOCTRINE    OF    EQUITY. 

rected  to  the  parties  named  as  defendants,  and  requiring 
r*mn  them  to  *appear  and  answer  the  bill,  and  to 
abide  by  the  decree  when  made.  If  a  writ  be 
wanted  besides  the  subpoena,  e.  g.,  a  writ  of  injunction  or 
ne  exeat  regno,  such  additional  writ  is  asked  in  the  prayer 
of  process.  In  bills  for  discovery,  or  to  perpetuate  testi- 
mony, the  words  "  to  abide  by  the  decree"  are  omitted, 
as  well  as  the  prayer  for  relief;  but  if  the  bill  be  for  dis- 
covery in  aid  of  a  defence  at  law,  it  asks  an  injunction 
against  proceeding  at  law  until  the  discovery  shall  be 
made.  If  a  peer  or  lord  of  Parliament  is  a  defendant,  it 
is  customary,  as  a  mark  of  courtesy,  that  instead  of  a 
subpoena  being  issued,  he  should  be  informed  of  the  bill 
by  a  letter  missive  from  the  Lord  Chancellor,  and  should 
be  requested  to  appear  and  answer.  The  same  courtesy 
is  extended  to  a  peeress,  and  to  a  Scotch  or  Irish  peer, 
though  not  a  lord  of  Parliament.  And  it  is  therefore 
usual,  in  the  prayer  of  process,  to  ask  a  letter  missive 
and  on  neglect  thereof,  a  writ  of  subpoena.  If  the  At- 
torney-General is  a  defendant  in  his  official  capacity,  the 
bill  prays  no  subpoena,  but  simply  that  he  being  attended 
with  a  copy  may  appear  and  answer,  (p)     In  certain  cases 

{p)  \  Dan.  C.  P.  368-371. 

Ala.  787  ;  Mobile,  &c.,  R.  R.  r.  Talman,  15  Id.  472  ;  Swayze  v.  Swayze,  1 
Stockt.  273.  The  objection  of  multifariousness,  however,  is  one  which 
may  be  taken  on  the  hearing  5  and,  indeed,  may  then  be  made  propria 
jure  by  the  court ;  but  see  Persch  v.  Quiggle,  57  Penn.  St.  247.  But  it  is 
not  necessarily  fatal,  when  thus  interposed,  and  its  allowance  rests  in  the 
discretion  of  the  court :  Story  Eq.  Plead.,  s.  284,  a  ;  Sims.  v.  Aughtery,  4 
Strob.  Eq.  104 ;  Felder  v.  Davis,  17  Ala.  425  -,  Oliver  v.  Piatt,  3  How.  U. 
S.  333. 

A  demurrer  for  multifariousness  goes  to  the  whole  suit,  and  if  sustained 
the  bill  should  be  dismissed,  and  not  retained  for  partial  relief:  Mcintosh 
».  Alexander,  16  Ala.  87 ;  Boyd  v.  Hoyt,  5  Paige  65 ;  Gibbs  v.  Claggett,  2 
Gill  &  J.  14 ;  Dunn  v.  Cooper,  3  Md.  Ch.  46. 


OF    THE     BILL.  621 

also,  where  parties  are  joined  as  nominal  defendants, 
against  whom  no  direct  relief  is  prayed,  so  that  their  ap- 
pearance in  the  suit  would  be  a  needless  expense,  the 
prayer  of  process  may  be  modified  by  omitting  to  sue  a 
writ  against  them,  and  by  asking  instead,  that  they, 
being  served  with  a  copy  of  the  bill,  may  be  bound  by 
the  proceeding  in  the  cause.  (§-)  The  prayer  of  process 
is  generally  expressed  in  drafts  by  the  words,  "May  it 
please,"  &c.,  and  a  direction  is  added,  in  the  margin,  as 
to  the  parties  to  be  included  in  it.  The  prayer  itself  is 
added  in  engrossing  the  bill ;  and  it  is  followed  by  a  note, 
specifying  the  interrogatories  which  each  defendant  is 
respectively  required  to  answer.^  ' 

iq)  1  Dan.  C.  P.  40^-408. 

'  In  Wright  v.  Wright,  4  Halst.  Ch.  143,  a  bill  which  contained  no  prayer 
of  process,  and  was  not  signed  by  counsel,  was  held  demurrable.  In  Grove 
V.  Potter,  4  Sandf.  Ch.  403,  however,  the  want  of  signature  of  counsel, 
was  held  to  be  ground  for  a  motion  to  take  a  bill  off  of  file,  but  not  for  de- 
murrer. 

The  illegibility  of  a  bill  is  not  ground  for  demurrer :  Downer  v.  Staine, 
4  Wise.  372. 


622  ADAMS's    DOCTRINE    OF    EQUITY. 


[*312]  *CH AFTER   II, 


OF   PARTIES. 

The  persons  against  whom  process  is  asked  are  the  de- 
fendants to  the  bill,  and  should  consist  of  all  persons  in- 
terested in  the  relief  sought,  who  are  not  already  joined 
as  plaintiffs.^  If  no  relief  he  sought,  viz.,  if  the  bill  be 
for  discovery  alone,  it  cannot  be  objected  to  for  want  of 
parties;^  but  if  relief  be  asked,  the  prayer  of  process 
must  be  so  framed  as  to  bring  all  persons  interested  in 
that  relief  before  the  Court,  either  as  plaintiffs  or  as 
defendants.^ 

^  They  are  only  parties  defendant  in  a  bill  of  Chancery,  against  whom 
process  is  prayed,  or  who  are  specifically  named  and  described  as  defend- 
ants :  Verplanck  v.  Merc.  Ins.  Co.  of  N.  Y.,  2  Paige  438  ;  Elmendorf  v. 
Delancy,  Hopkins  555  ;  Lucas  ».  Bank  of  Darien,  2  Stew.  280 ;  Green  v. 
McKinney,  6  J.  J.  Marsh.  193 ;  Carey  v^  Hillhouse,  5  Ga.  251.  Praying 
that  the  "  heirs"  may  be  made  defendants,  without  taking  out  process 
against  them  or  naming  them  in  the  bill,  is  not  making  them  defendants : 
Huston  V.  McClarty's  Heirs,  3  Litt.  274;  Moore  v.  Anderson,  1  Ired.  Eq. 
411.  The  process  alone,  and  the  return  upon  it,  govern  the  question  of 
who  are  parties,  if  there  is  not  a  special  entry  showing  the  appearance  of 
some  one  not  served  with  process;  De  Wolf  v.  Mallett,  3  Dana  214.  As 
to  making  absent  parties  defendants  by  publication,  see  Young  v.  Pate,  3 
Dana  306^  Letcher  v.  Schroder,  5  J.  J.  Marsh.  513.  There  must  be  ser- 
vice of  process,  actual  or  constructive :  Estill  v.  Clay,  2  A.  K.  Marsh.  497. 

»  Trescott  v.  Smyth,  1  McCord's  Ch.  301,  303. 

'  See,  on  the  general  subject.  Mechanics'  Bank  v.  Seton,  1  Peters  299 ; 
Story  V.  Livingstone,  13  Id.  359 ;  Hussey  v.  Dole,  24  Maine  20 ;  McConnell 
V.  McConnell,  11  Verm.  290;  Noyes  v.  Sawyer,  3  Id.  160j  Crocker  v,  Hig- 


OF    PARTIES.  623 

Tn  both  these  points  the  rule  of  equity  differs  from  the 
rule  of  law,  both  in  the  necessity  of  joining  all  interested 
parties  in  the  suit,  and  in  the  option  of  joining  them  as 
plaintiffs  or  defendants.  At  law,  a  disputed  issue  is  alone 
contested ;  the  immediate  disputants  alone  are  bound  by 
the  decision ;  and  they  alone  are  the  proper  parties  to  the 
action.  In  equity,  a  decree  is  asked,  and  not  a  decision 
only ;  and  it  is  therefore  requisite  that  all  persons  should 
be  before  the  Court,  whose  interest  may  be  affected  by 
the  proposed  decree,  or  whose  concurrence  is  necessary  to 
a  complete  arrangement.  The  same  reason  which  requires 
that  the  immediate  disputants  be  the  only  parties  at  law, 
also  requires  their  arrangement  as  parties  plaintiff  and  de- 
fendant, so  that  all  the  plaintiffs  shall  support  one  side, 
and  all  the  defendants  the  other  side  of  the  question  in 
*issue.  In  equity,  it  is  only  requisite  that  the  r-^q-i  o-i 
interests  of  the  plaintiffs  be  consistent,  and  it  is 
immaterial  that  the  defendants  are  in  conflict  wifJi  each 


gins,  7  Conn.  342 ;  Xew  London  Bk.  v.  Lee,  11  Id.  112 ;  Hawley  v.  Cramer, 
4  Cowen  717  ;  Oliver  v.  Palmer,  11  Gill  &  J.  426  ;  Clark  v.  Long,  4  Rand. 
451 ;  Vann  v.  Hargett,  2  Dev.  &  Bat.  Ch.  31 ;  Frazer  v.  Legare,  1  Bailey 
Ch.  389 ;  Lucas  v.  Bank  of  Darien,  2  Stew.  280 ;  Park  v.  Ballentine,  6 
Blackf.  223  ;  De  La  Vergne  v.  Evertson,  1  Paige  181 ;  West  v.  Eandall,  2 
Mass.  181  ;  Caldwell  v.  Taggart,  4  Peters  190 ;  Duncan  v.  Mizner,  4  J.  .J. 
Marsh.  447 ;  Wendell  v.  A^an  Rensselaer,  1  Johns.  Ch.  340 ;  Wilson  v. 
Hamilton,  9  Johns.  442  ;  Key  v.  Lambert,  1  Hen.  &  Munf.  330 ;  Burhans 
V.  Burhans,  2  Barb.  Ch.  398 ;  Boughton  v.  Allen,  11  Paige  321;  Carey  v. 
Hoxey,  11  Ga.  645 ;  Bailey  v.  Myrick,  36  Maine  50 ;  Whitney  v.  Mayo,  15 
111.  251 ;  Society  for  Propagation  of  the  Gospel  v.  Hartland,  2  Paine  C.  C. 
536  ;  Hall  V.  llaU,  11  Texas  526  ;  Geisse  v.  Beall,  3  Wis.  367  ;  Batchelder  v. 
Wendell,  36  N.  H.  204;  Burnham  v.  Kempton,  37  Id  485;  Pence  v. 
Pence,  2  Beas.  257  ;  Daily  w.  Litchfield,  10  Mich.  29 ;  Lovejoy  v.  Irelan, 
17  Md,  525.  All  persons  having  the  same  interest  should  stand  on  the 
same  side  of  the  suit ;  but  if  any  such  refuse  to  appear  as  plaintiffs,  they 
may  be  made  defendants,  their  refusal  being  stated  in  the  bill :  Contee  v. 
Dawson,  2  Bland.  264,  292 ;  Whitney  v.  Mayo,  15  111.  251. 


624  ADAMS's    DOCTRINE     OF    EQUITY. 

other,  or  that  some  of  their  claims  are  identical  with  those 
of  the  plaintiffs.  It  should,  however,  be  observed,  that 
although  a  conflict  of  interests  among  the  defendants  is 
no  objection  to  a  bill,  yet  it  does  not  follow  that  the  Court 
will  adjudicate  on  their  conflicting  claims.  It  will  do  so 
if  the  decision  be  necessary  to  the  plaintifl"s  right,  e.  g., 
if  a  bill  be  filed  by  a  second  mortgagee  against  the  mort- 
gagor and  a  prior  mortgagee,  praying  to  redeem  the  first 
mortgage,  and  that  the  mortgagor  may  then  redeem  both 
or  stand  foreclosed.  In  this  case,  it  is  obvious,  that  be- 
fore relief  can  be  given,  the  validity  and  amount  of  the 
first  mortgage  must  be  determined,  not  only  as  between 
the  plaintiff  and  the  defendants,  but  as  between  the  co- 
defendants  themselves.  If  there  be  no  necessity  arising 
out  of  the  plaintiff's  claim,  the  Court  will  not  adjudicate 
between  co-defendants,  (a) 

If  the  suit  be  against  a  married  woman,  her  husband 
must  be  joined  as  a  party,  unless  he  is  an  exile  or  has 
adjured  the  realm.^     If  it  be  against  an  idiot  or  lunatic, 

(a)  Farquharson  v.  Seton,  5  Russ.  45 ;  Cottinghara  v.  Shrewsbury,  3 
Hare  627  ;  Sandford  v.  Morrice,  11  CI.  &  F.  667  ;  Mitf.  81. 

^  And  although  he  is  a  certified  bankrupt,  he  should  be  joined  as  a 
party  :  Hamlin  v.  Bridge,  24  Maine  145  ;  Smith  v.  Etches,  1  Hem.  &  M. 
558.  So,  in  a  suit  by  a  husband  upon  an  interest  in  right  of  the  wife,  the 
wife  must  be  a  party :  Schuyler  v.  Iloyle,  5  Johns.  Ch.  196  ;  Griffith  v. 
Coleman,  5  J.  J.  Marsh.  600  ;  Ringo  v.  Warder,  6  B.  Monr.  514 ;  Booth  v. 
Albertson,  2  Barb.  Ch.  313  ;  Johns  v.  Reardon,  3  Md.  Ch,  57 ;  Flowerton 
V.  Wimbish,  2  Jones  Eq.  328.     See  Smith  v.  Pincombe,  3  Macn.  &  G.  653. 

Where  a  bill  is  in  the  name  of  husband  and  wife,  yet  only  concerns  her 
separate  estate,  and  no  relief  is  asked  for  or  against  the  husband,  but  is 
only  to  establish  her  rights  and  protect  her  interests,  he  will  be  regarded 
by  the  court  as  her  next  friend  or  trustee  :  Michan  v.  Wyatt,  21  Ala.  813  ; 
Boykin  v.  Ciples,  2  Hill  Eq.  200 ;  Stuart  v.  Kissam,  2  Barb.  S.  C.  492 ; 
Berry  o.  Williamson,  11  B.  Monr.  245  ;  Bein  ».  Heath,  6  How.  U.  S.  228. 
*'  In  practice  where  the  suit  is  brought  by  the  wife  for  her  separate  pro- 
perty, the  husband  is  sometimes  made  co-plaintiff.     But  this  practice  is 


OF    PARTIES.  625 

the  committee  of  his  estate  must  be  joined.  (^)  If  the 
superintendence  of  a  public  trust  is  involved,  the  Attor- 
ney-General must  be  a  party  on  behalf  of  the  Crown. 
And  it  is  generally  considered  that  the  same  course  may 
be  pursued  where  the  rights  of  the  Crown  are  incidentally 
concerned.^  If,  however,  the  Crown  is  in  possession,  or 
if  a  title  is  vested  in  it  which  the  suit  seeks  to  divest  or 
affect,  or  if  its  rights  are  the  immediate  and  sole  object  of 
the  suit,  the  application  must  be  to  the  Crown  by  petition 
of  right.  A  Queen  consort  has  the  same  prerogative.  A 
foreign  Sovereign  also,  whether  residing  within  the  Bri- 
ish  dominions  or  not,  is  ordinarily  exempt  from  the  juris- 
diction. But  he  is  competent  to  sue  as  plaintiff;  and  if 
he  does  so,  he  submits  himself  to  the  jurisdiction  in  re- 

(6")  Mitf.  on  Plead.  30 ;  1  Dan.  Ch.  P.  160-170.     [See  Sturge  v.  Long- 
worth,  1  Ohio  N.  S.  544.] 

incorrect  5  and  in  all  such  cases  she  ought  to  sue  as  sole  plaintiflF  by  her 
next  friend,  and  the  husband  should  be  made  a  party  defendant ;  for  he 
may  contest  that  it  is  her  separate  property,  and  the  claim  may  be  incom- 
patible with  his  marital  rights :"  Story's  Equity  Pleading,  ^  63  ;  Johnson 
V.  Vail,  1  McCart.  423  ;  Daniel's  Ch.  Prac.  105 ;  see  also  Michan  v.  Wyatt, 
21  Ala.  823  ;  Barham  r.  Gregory,  Phill.  (N.  C.)  Eq.  243.  But  in  Smith  v. 
Etches,  1  Hem,  &  M.  558,  it  is  said  that  the  husband  ought  to  be  joined 
as  co-plaintiff ;  and  see  Hope  v.  Fox,  1  John.  &  H.  456.  A  person  cannot 
be  made  a  defendant  in  the  action  upon  his  own  application :  Drake  v. 
Goodridge,  6  Blatchf.  151. 

^  In  a  suit  to  enforce  a  contract  made  by  the  agent  of  the  Auburn  State 
.  Prison  for  the  labor  of  the  convicts,  it  seems  that  the  Attorney-General 
should  be  made  a  party :  Jones  v.  Lynds,  7  Paige  305  :  see,  also,  Garr  v. 
Bright,  1  Barb.  Ch.  157,  164 ;  Harvard  College  v.  Society  for  Promoting 
Theological  Education,  3  Gray  280,  The  interest  of  a  tax  payer,  where 
money  is  to  be  raised  by  taxation,  or  expended  from  the  treasury,  is  suflB- 
cient  to  enable  him  to  proceed  in  equity  to  test  the  validity  of  the  law 
which  proposes  the  assessment  or  expenditure :  Page  r.  Allen,  58  Penn. 
St,  338. 

40 


626  ADAMS's    DOCTRINE     OF    EQUITY. 

r*Qi  4.-1  spect  of  the  *matter  sued  for,  and  must  answer 
on  oath  to  a  cross-bill,  (c)^ 
If  a  bill  be  filed  either  by  or  against  uninterested 
parties,  their  joinder  is  sometimes  spoken  of  as  a  fault 
in  pleading,  but  it  seems  more  correct  to  say  that,  to  the 
extent  of  such  misjoinder,  there  is  a  failure  on  the  merits, 
and  the  suit  will  be  dismissed  accordingly.^  The  only 
excej)tion  to  this  rule  is  in  suits  against  a  corporation,  in 

(c)  Mitf.  on  Plead.  30 ;  1  Dan.  Ch.  P.  138-140 ;  Duke  of  Brunswick  v. 
King  of  Hanover,  6  Beav.  1. 

^  See  United  States  v.  Wagner,  L.  R.  2  Ch.  Ap.  582 ;  Prioleau  v.  The 
United  States,  L.  R.  2  Eq.  659 ;  ante,  page  2,  note  1. 

^  The  general  rule  is  that  an  objection  for  nonjoinder  or  misjoinder  of 
parties  ought  to  be  made  by  demurrer:  Bartlett  v.  Boyd,  34  Verm.  256; 
but  see  Case  v.  Carroll,  35  N.  Y.  385,  plea  or  answer.  If  taken  on  the 
hearing,  it  is  discretionary  with  the  Court  to  allow  it.  After  hearing  and 
decree,  it  is  too  late  to  object:  Bunnell  v.  Read,  21  Conn.  586;  Ilunley  v. 
Hunley,  15  Ala.  91  ;  McMaken  v.  McMaken,  18  Id.  576;  Woodward  v. 
Wood,  19  Id.  213  ;  Gilbert  v.  Sutliff,  3  Ohio  (N.  S.)  129.  In  the  case,  how- 
ever, of  the  omission  of  indispensable  parties,  or  when  a  complete  and 
valid  decree  cannot  be  made,  or  the  rights  of  absent  parties  would  be 
aflfected,  the  objection  may  be  taken  on  the  hearing  by  the  Court  itself,  ex 
mero  moiu,  or  for  the  first  time,  on  appeal :  McMaken  v.  McMaken,  18 
Ala.  576  ;  Gould  v.  Hayes,  19  Id.  438  ;  Woodward  v.  Wood,  Id.  213  ;  Chap- 
man v.  Hamilton,  Id.  121.  A  demurrer  for  want  of  parties  should  point 
out  the  proper  parties:  Chapman  v.  Hamilton,  19  Ala.  121;  Caldwell  v, 
Blackwood,  1  Jones  Eq.  274 ;  Hightower  v.  Mustian,  8  Ga.  506.  On  de- 
murrer, the  bill  is  not  dismissed,  but  the  complainant  is  at  liberty  to 
amend,  except  where  proper  parties  cannot  be  made ;  Hightower  v.  Mus- 
tian, ut  supra ;  Smith  t'.  Kornegay,  1  Jones  Eq.  40.  See,  as  to  the  mode 
of  proceeding,  where  objection  is  taken  by  answer,  Rnles  in  Equity,  U.  S. 
Courts,  No.  lii. ;  Penna.,  No.  xxvii. 

Where  a  complainant  amends  according  to  the  suggestions  of  the  an- 
swer, by  the  addition  of  parties,  he  cannot  afterwards  allege  them  to  be 
unnecessary,  in  order  to  dispense  with  a  want  of  service  on  them  :  Moodie 
V.  Bannister,  1  Drew.  514.  But  he  will  not  be  justified  in  making  a  person 
a  party  merely,  because  the  defendants  insist  that  he  ought  to  be  made  a 
party  ;  and  as  to  the  person  so  joined  the  bill  will  be  dismissed  with  costs  : 
Williams  v.  Page,  24  Beav.  654. 


OF    PARTIES.  627 

which  their  clerk  or  other  officer  may  be  made  a  defend- 
ant, though  unaffected  by  the  relief  sought,  in  order  that 
he  may  give  discovery  on  oath,  which  the  corporate  body 
cannot  do.(^)^  If  the  bill  be  for  discovery  alone,  in  aid 
of  proceedings  at  law,  no  person  can  be  made  a  defendant 
who  is  not  a  party  to  the  record  at  law.  {e) 

With  respect  to  the  nature  of  the  interest  which  re- 
quires a  person  to  be  joined  in  a  suit,  there  is,  of  course, 
no  difficulty  as  to  persons  against  whom  relief  is  expressly 
asked.  But  with  respect  to  those  who  are  incidentally 
connected  with  the  relief  asked  against  others,  the  line  of 
demarcation  is  less  easy  to  draw.  The  interests,  how- 
ever, which  require  such  joinder,  seem  generally  refer- 
able to  one  of  the  three  following  heads :  first,  interests 
in  the  subject-matter  which  the  decree  may  affect,  and 
for  the  protection  of  which  the  owners  are  joined ;  secondly, 
concurrent  claims  with  the  plaintiff,  which  if  not  bound 
by  the  decree,  may  be  afterwards  litigated  ;  and  thirdly, 
liability  to  exonerate  the  defendant  or  to  contribute  with 
him  to  the  plaintiff's  claim. 

{d)  Glasscott  V.  Copperminers'  Company,  11  Sim.  305. 

(e)  Kerr  v.  Rew,  5  M.  &  C.  154. 

_  ^ 

^  The  case  of  officers  or  agents  of  a  corporation,  is  an  exj^eption  to  the 
rule  that  a  person  who  has  no  interest  in  the  subject-matter,  and  who  is  a 
mere  witness,  cannot  be  made  a  defendant  in  a  bill  in  Chancery.  See 
Ayers  v.  Wright,  8  Ired.  Eq.  229 ;  Yates  v.  Monroe,  13  111.  212.  But  they 
can  only  be  made  parties  for  discovery,  where  relief  is  sought  against  the 
corporation,  and  not  where  the  whole  relief  claimed  is  against  persons 
other  than  the  corporation:  Many  v.  Beekman  Iron  Co.,  9  Paige  188.  The 
United  States  of  America  can  sue  in  that  name  in  the  English  Chancery, 
without  putting  forward  any  public  oflBcer  who  could  be  called  on  to  give 
discovery  on  a  cross-bill :  U.  S.  of  A.  v.  Wagner,  L.  R.  2  Ch.  582 ;  but  the 
Court  may  stay  proceedings  till  this  is  done :  Id. 

Where  there  is  charge  of  fraud  in  a  transaction,  in  which  an  agent  par- 
ticipated, and  it  is  so  charged  in  the  bill,  he  may  be  made  a  party,  and 
subjected  to  the  costs  of  suit,  even  if  no  other  decree  be  made  against  him : 
Gartland  v.  Xunn,  6  Eng.  (Ark.)  721. 


628  adamS's  doctrine  of  equity. 

The  nature  of  the  interest  comprised  under  each  of 
these  definitions  will  be  best  explained  and  illustrated  by 
examples ;  but  the  question,  whether  the  interest  which 
in  each  particular  case  an  individual  may  possess  is  or  is 
not  within  the  sco^e  of  the  suit,  is  one  of  law  rather  than 
of  pleading,  and  cannot  properly  be  here  considered.  (/) 
P^o-ir-j  *1.  The  joinder  of  parties  for  protection  of 
their  own  interests  may  be  illustrated  by  the  case 
of  suits  for  dealing  with  property,  to  which  several  per- 
sons are  entitled  as  co-owners,^  or  as  tenants  for  life  and 
in  remainder,  or  as  having  charges  on  the  estate.  In  all 
these  cases,  if  the  object  proposed  is  not  confined  to  any 
particular  interest,  but  affects  the  corpus  of  the  estate,  all 
such  persons  ought  to  be  parties. (^)  But  if  their  inter- 
ests be  prior  or  paramount  to  the  objects  of  the  bill,  so 
that  they  will  not  be  affected  by  the  decree,  such  interests 
will  make  their  j'oinder  requisite;  e.g.,  the  interest  of  a 
mortgagee  on  a  bill  respecting  the  equity  of  redemption, 
or  the  interest  of  an  encumbrancer  or  other  prior  and  ad- 
verse claimant  not  privy  to  the  contract,  on  a  bill  for 
specific  performance,  (/i)^ 

(/)  1  Dan.  Ch.  P.  ch.  5. 

\g)  Brookes  v.  Burt,  1  Beav.  106  ;  [Townend  v.  Toker,  L.  R.  1  Ch.  446.] 

[h)  Devonsher  v.  Newenham,  2  Sch.  &  L.  199,  210 ;  Lewis  v.  Zouche,  2 

Sim.  388 ;  Tasker  v.  Small,  3  M.  &  C.  63  ;  [De  Hoghton  v.  Money,  L.  R.  2 

Ch.  Ap.  164;  West  Midland  R.  R,  Co.  v.  Nixon,  1  Hem,  &  M.  176;]   Nel- 

thorpe  V.  Holgate,  1  Coll.  203. 

^  Every  party  interested  in  land  belonging  to  co-tenants  is  a  necessary 
party  to  a  bill  for  partition :  Borah  v.  Archers,  7  Dana  176 ;  Newman  v. 
Kendall,' 2  A.  K.  Marsh.  234  ;  Pope  v.  Melone,  Id.  239.  So  of  tenants  in 
common  of  chattels:  Ramey  v.  Green,  18  Ala.  771. 

To  a  bill  filed  by  an  heir  to  avoid  the  deed  of  the  ancestor,  all  the  heirs 
should  be  made  parties;  Young  v.  Bilderback,  2  Green  Ch.  206,  A  bill  in 
equity  to  enforce  the  specific  performance  of  a  contract,  made  by  a  deceased 
person,  for  the  sale  of  land,  must  include  his  heirs  as  parties  defendant : 
Moore  v.  Murrah,  40  Ala.  573 

*  To  a  bill  for  foreclosure  and  sale  of  mortgaged  premises,  all  encum- 


OF    PARTIES.  629 

The  joinder  of  parties  for  protection  of  their  own  in- 
terests is  usually  brought  in  question  where  such  interests 
are  concurrent  with  that  of  the  plaintiff,  for  if  they  are 
concurrent  with  that  of  the  defendant,  the  necessity  of 
joining  their  owners  is  generally  made  apparent  by  the 
introduction  of  a  prayer  for  direct  relief. 

brancers,  or  persons  having  an  interest  existing  at  the  commencement  of 
the  suit,  subsequent  as  well  as  prior  in  date  to  the  plaintiff's  mortgage* 
must  be  made  parties,  otherwise  thej  will  not  be  bound  by  the  decree : 
Haines  r.  Beach,  3  Johns.  Ch.  459  ;  Ensworth  v.  Lambert,  4  Id.  605 ; 
Porter  v.  Clements,  3  Ark.  364  ;  Huggins  v.  Hall,  10  Ala.  283.  Those  be- 
coming encumbrancers  pendente  lite  on  a  mortgage  are  not  necessary 
parties  to  a  bill  to  foreclose :  Youngman  v.  Elmira  &  W.  R.  R.,  65  Penn- 
St,  278.  Though  a  junior  mortgagee  may  be  a  necessary  party,  if  known 
to  the  senior  mortgagee,  in  his  suit  for  a  foreclosure  and  sale,  it  does  not 
follow,  it  is  said,  that  if  he  be  not  known,  and  a  decree  of  foreclosure  and 
sale  be  made,  that  an  innocent  purchaser  should  be  deprived  of  the  benefit 
of  his  purchase :  Bank  of  the  U.  S.  v.  Carroll,  4  B;  Monr.  40. 

The  mortgagees  who  are  vested  with  the  legal  title  are  necessary  parties 
to  a  bill  to  redeem.  So,  if  a  special  authority  be  vested  in  one  or  more 
of  the  mortgagees  for  the  benefit  of  the  whole,  all  must  be  joined.  If  the 
mortgagee  be  only  a  trustee,  his  cestui  que  trust  must  be  joined :  Wood- 
ward V.  Wood,  19  Ala.  213  ;  but  see  the  New  Jersey  Franklinite  Co.  v.  Ames, 
I  Beas.  509.  In  some  cases  it  has  been  a  question  how  far  a  prior  encum- 
brancer is  a  necessary  party :  see  Finley  v.  Bank  U.  S.,  11  Wheat.  306 ;  Post 
V.  Mackall,  3  Bland  495  ;  Wakeman  v.  Grover,  4  Paige  23;  Cocron  v.  Mid- 
dleton,  19  How.  113;  Johnson  v.  Brown,  11  Foster  405;  Miles  v.  Smith, 
22  Mo.  502 ;  Story  Eq.  PI.,  §  185,  193.  In  Hagan  ».  Walker,  14  How.  U. 
S.  29,  the  true  rule  was  held  to  be,  that  where  it  is  the  object  of  the  bill  to 
procure  the  sale  of  l.ind,  and  the  prior  encumbrancer  holds  the  legal  title, 
and  his  debt  is  payable,  it  is  proper  to  make  him  a  party,  in  order  that  a 
sale  may  be  made  of  the  whole  title.  But  it  is  in  the  power  of  the  court 
to  order  a  sale  subject  to  the  prior  encumbrance  ;  a  power  which  it  will 
exercise  in  proper  cases,  as  where  the  prior  encumbrancer  is  not  subject 
to,  or  is  out  of  the  jurisdiction,  and  the  validity  of  the  encumbrance  is 
admitted ;  and  will  in  such  case  dispense  with  his  being  made  a  party. 

W^here  a  state  occupies  the  position  of  a  prior  mortgagee,  it  need  not  be 
made  a  party  to  a  suit  to  forclose  a  mortgage ;  its  right  being  paramount : 
Pattison  v.  Shaw,  6  Ind.  377.  The  mortgagee  is  a  necessary  party  to  a 
suit  to  reform  a  mortgage  deed,  brought  by  a  purchaser  at  a  sale  by  the 
mortgagee :  Haley  v.  Bagley,  37  Mo.  363. 


630  ADAMS's    DOCTKINE    OF    EQUITY. 

The  rule  requiring  the  joinder  of  all  persons  whose  in- 
terests the  decree  may  affect  is  subject  to  two  modifica- 
tions, which,  at  first  sight,  appear  to  be  exceptions,  but 
which  are  in  reality  mere  limitations  of  its  effect,  origi- 
nating in  the  same  principles  as  the  rule  itself.  The  first 
of  these  modifications  is  the  exclusion  of  remaindermen 
after  an  estate  tail ;  the  second  is  the  exclusion  of  lega- 
tees or  next  of  kin  on  bills  for  a  debt  or  legacy  against 
the  personal  representative. 

The  exclusion  of  remaindermen  after  an  estate  tail 
originates  in  the  possession  by  tenant  in  tail  of  an  abso- 
P-jQi  ai  l^t®  *power  to  destroy  the  remainders,  so  that  he 
alone  represents  the  inheritance,  and  the  subse- 
quent remaindermen  have  no  interest  to  protect.  If  the 
subsequent  estates  are  independent  of  the  estate  tail,  or 
if  that  estate  should  determine  during  the  suit,  without 
their  destruction  having  taken  place,  the  remaindermen 
must  be  made  parties,  (^y 

The  exclusion  of  legatees  or  next  of  kin,  on  a  bill  for 
a  debt  or  legacy  against  the  personal  representative,  orig- 
inates in  the  assumption  that  such  legatees  or  next  of 
kin  have  in  reality  no  interest  in  the  object  of  the  suit.^ 

[i)  Mitf.  173-4 ;  Lloyd  v.  Johnes,  9  Ves.  39-55 ;  Gaskell  v.  Gaskell,  6 
'Sim.  643. 

^  See  on  this  subject,  Sohier  v.  Williams,  1  Curtis  479  ;  Lushington  v. 
Boldero,  13  Beav.  418;  Beattie  v.  Johnston,  8  Hare  169  ;  Nodine  r.  Green- 
field, 7  Paige  544. 

*  The  personal  estate  of  a  testator  is  represented  by  the  executor,  and  a 
residuary  legatee  is  not  a  necessary  party  to  a  bill  by  the  creditor  seeking 
to  charge  the  general  assets  of  the  testator:  Burwell  v.  Cawood,  2  How. 
U.  S.  575 ;  Wiser  v.  Blackley,  1  Johns.  Ch.  437  ;  Watts  v.  Gayle,  20  Ala. 
824;  Melick  v.  Melick,  2  Green  (N.  J.)  156.  Nor  are  the  general  cred- 
itors proper  parties  in  such  a  suit :  Dias  v.  Bouchaud,  10  Paige  445.  Nor 
can  a  creditor  filing  a  bill  against  an  executor  make  a  debtor  a  party,  un- 
less under  special  circumstances:  Long  ij.  Magestre,  1 'Johns.  Ch.  305. 


OF    PARTIES.  631 

For  although  they  are  in  some  sense  concerned  in  it,  yet 
it  is  only  in  the  same  sense  in  which  every  creditor  is 
concerned  in  the  management  of  his  debtor's  estate ;  viz., 
it  is  important  to  them  that  the  ability  to  meet  their 
claims  should  not  be  diminished ;  but  the  personal  repre- 
sentative is  not  a  trustee  for  them,  nor  have  they  any  in- 
terest in  the  estate  itself.  (^)  If  the  claimants  are  not 
mere  legatees  payable  by  the  executor,  but  specific 
owners  of  the  property  itself,  the  ordinary  rule  applies ; 
e.  g.,  where  they  take  as  appointees  under  a  married 
woman's  will,(/)  or  where  their  legacies  are  charged  on 
real  estate.  In  this  latter  instance,  however,  a  modifica- 
tion has  lately  been  introduced,  assimilating  to  some  ex- 
tent a  devisee  on  trust  with  a  personal  representative  ; 
and  it  is  directed  that,  in  all  suits  concerning  real  estate 
which  is  vested  by  devise  in  trustees,  who  are  competent 
to  sell  and  to  give  discharges  for  the  purchase-money  and 
for  the  rents  and  profits  of  the  estate,  such  trustees  shall 
represent  the  persons  beneficially  interested  in  the  same 
manner,  and  to  the  same  extent,  as  the  executors  or  ad- 
ministrators in  suifes  concerning  personal  estate ;  and  it 

(A)  Hertford  v.  DeZichi,  9  Beav.  11 ;  Mitf.  168. 
(0  Court  V.  Jeffery,  1  S.  &  S.  105. 

As  to  when  heirs  should  be  parties  to  such  suit,  see  Kennedy  v.  Kennedy, 
2  Ala.  571 ;  Telfair  v.  Stead,  2  Cranch  407 ;  Galphin  v.  McKinney,  1 
McCord's  Ch.  280.  In  a  suit  for  final  settlement  of  a  partnership,  it  is 
not  necessary  to  join  those  beneficially  entitled  to  the  share  of  a  deceased 
partner,  their  rights  being  sufficiently  protected  by  the  personal  represen- 
tative: Coster  V.  Clarke,  3  Edw.  Ch.  428. 

Though  ordinarily  a  bill  may  be  sustained  by  one  legatee  alone :  Prit- 
chard  v.  Hicks,  1  Paige  270  ;  Brown  v.  Ricketts,  3  Johns.  Ch.  553  ;  Ramey 
V.  Green,  18  Ala.  776 ;  yet  it  is  different  as  to  a  residuary  legatee,  who 
must  join  all  parties  interested :  Pritchard  v.  Hicks,  ut  sup. ;  West  v.  Ran- 
dall, 2  Mason  181 ;  Gould  v.  Hays,  19  Ala.  438  ;  see  Sellings  v.  Baumgard- 
ner,  9  Gratt.  273. 


632  ADAMS'S    DOCTRINE    OF    EQUITY. 

shall  not  be  necessary  to  make  the  persons  beneficially 
interested  parties  to  the  suit.  But  the  Court  may  at 
r*m  71  *^^®  hearing  require  them  to  be  joined,  if  it  shall 
^        ^  think  fit.  (//) 

2.  The  joinder  of  parties  who  have  concurrent  claims 
with  the  plaintiff,  which,  if  not  bound  by  the  decree, 
might  be  afterwards  litigated,  is  most  directly  illustrated 
by  cases  in  which  a  plaintiff  sues  on  an  equitable  title, 
and  the  legal  title  is  vested  in  a  trustee  for  him.  In 
these  cases  the  trustee  must  be  made  party,  either  as  a 
co-plaintiff  or  a  defendant,^  for  although  the  trustee  has 
no  interest  to  protect,  yet  he  has  a  legal  right  against  the 
defendant  which  would  not  otherwise  be  bound ;  e.  g.,  the 
heir  or  devisee  of  a  deceased  mortgagee  in  jee  must  be  a 
party  to  any  bill  of  foreclosure  by  the  executor  j(m)^  the 
assignor  of  a  debt  or  other  chose  in  action,  not  transferable 

{II)  30th  Order  of  August,  1841.  [See  Rules  in  Eq.  U.  S.  Courts,  No. 
xlix.  ;  Penn.,  xxiii.] 

(m)  Scott  V.  Nicoll,  3  Russ.  476. 

»  Malin  v.  Malin,  2  Johns.  Ch.  238  ;  Fish  v.  Howland,  1  Paige  20 ;  Bank 
of  America  v.  Pollock,  4  Edw.  Ch.  215  ;  Cassiday  i;.  McDaniel,  8  B.  Monr. 
519  ;  Carter  v.  Jones,  5  Ired.  Eq.  196 ;  Everett  v.  Winn,  1  Sm.  &  M.  Ch. 
67  ;  McKinley  v.  Irwine,  13  Ala.  681  ;  Swant?.  Dent,  2  Md.  Ch.  Ill ;  Allen 
V.  Simons,  1  Curtis  122 ;  Sayre  v.  Sayre,  2  Green  (N.  J.)  349.  The  holder 
of  the  legal  title,  as  well  as  those  from  whom  the  complainant  derives  his 
equity,  should  be  made  parties :  Johnson  v.  Rankin,  2  Bibb  184  •,  Upham 
V.  Brooks,  2  Story  623.  Where  it  becomes  necessary  to  file  a  bill  in  equity 
to  enforce  the  payment  of  a  bill  of  exchange,  he  who  holds  the  naked  legal 
title  may  sue  alone,  as  at  law,  though  he  who  is  entitled  to  the  proceeds 
may  come  .in,  and  be  made  a  party,  if  he  wishes  it :  Hopkirk  v.  Page,  2 
Brock.  20,  42. 

^  It  is  not  necessary  to  make  the  personal  representatives  of  the  mort- 
gagor a  party  to  a  bill  to  foreclose  or  sell ;  but  upon  the  death  of  the  mort- 
gagee, it  is  necessary  to  make  both  his  heirs  and  personal  representatives 
parties :  Worthington  v.  Lee,  2  Bland  684. 


OF    PARTIES.  633 

at  law,  must  be  a  party  to  any  suit  by  the  assignee  re- 
specting it.  {ny 

(n)  Cathcart  v.  Lewis,  1  Ves.  Jr.  463 ;  Walburn  v.  Ingilby,  1  M.  & 
K.  61. 

^  If  there  remain  any  interest,  right,  or  liability,  in  the  assignor,  which 
can  be  aflPected  by  the  decree,  a  scintilla  juris  even,  the  assignor  is  a  neces- 
sary party :  Thompson  v.  McDonald,  2  Dev.  &  Batt.  Eq.  463  ;  Hopkins  v. 
Hopkins,  4  Strob.  Eq.  207  ;  Montague  v.  Lobdell,  11  Cush.  111.  The  as- 
signor of  a  bond  or  note,  the  payment  of  which  is  secured  by  a  mortgage, 
should  be  made  a  party  to  a  suit  by  the  assignee  to  foreclose  the  mort- 
gage :  Bell  V.  Schrock,  2  B.  Monr.  29.     See  Beals  v.  Cobb,  51  Maine  348. 

To  a  bill  on  a  bond  by  an  assignee,  the  assignor  is  a  necessary  party, 
where  the  bond  is  not  assignable  at  law:  Gatewood  v.  Rucker,  1  Monr. 
21 ;  Forman  r.  Rodgers,  1  A.  K.  Marsh.  426. 

To  a  bill  by  the  assignee  of  a  debt,  to  obtain  certain  securities  given  by 
the  debtor  to  the  attorney  of  the  assignor,  where  the  attorney  had  assigned 
the  same  against  the  attorney  and  his  assignee,  the  assignor  of  the  com- 
plainant is  a  necessary  party  :  Elderkin  v.  Shultz,  2  Blackf.  345. 

Whether  the  assignee  of  the  exclusive  right  to  use  a  patented  machine 
may  join  his  assignor  as  a  co-plaintiff  in  a  suit  for  a  violation  of  the  patent, 
Quaere?     See  Woodworth  v.  Wilson,  4  How.  U.  S.  712. 

In  some  cases,  the  heirs  of  the  assignor  are  necessary  parties  to  a  bill  by 
the  assignee.     See  Edwards  v.  Bohannon,  2  Dana  98. 

To  a  bill  by  the  assignee  of  a  judgment,  the  assignor  should  be  a  party  : 
McKinnie  v.  Rutherford,  1  Dev.  &  Batt.  Eq.  14  ;  Elliott  v.  Waring,  5  Monr. 
338 ;  Peraberton  v.  Riddle,  5  Monr.  401 ;  Cooper  v.  Gunn,  4  B.  Monr.  594, 
See,  as  to  the  joinder  of  the  assignor  in  a  judgment  creditor's  bill  filed  by 
the  assignee  :  Morey  v.  Forsyth,  Walk.  Ch.  465  ;  Beach  v.  White,  Id.  495. 

Where  the  assignment  is  absolute  and  unconditional,  and  leaves  no  re- 
maining right  or  liability  in  the  assignor  which  can  be  affected  by  the 
decree,  the  assignee  need  not  make  the  assignor  a  party.  Thus,  assignors 
are  not  necessary  parties  to  suits  by  assignees  on  bondg,  where  there  are 
statutes  authorizing  the  assignment  of  bonds.  See  Snelling  v.  Boyd,  2 
Monr.  132.  So,  the  assignor  of  a  note  in  controversy,  who  has  no  interest 
in  it,  and  against  whom  no  relief  is  prayed,  is  not  a  necessary  party  to  the 
bill :  Everett  v.  Winn,  1  S.  &  M.  Ch.  67.  See  also  on  this  subject,  Polk  v. 
Gallant,  2  Dev.  &  Batt.  Eq.  395  ;  Thompson  ».  McDonald,  Id.  463 ;  Snel- 
ling V.  Boyd,  5  Monr.  172 ;  Kennedy  v.  Davis,  7  Id.  372 ;  James  River 
Co.  V.  Littlejohn,  18  Gratt.  (Va.)  53. 

The  assignor  of  an  entry  need  not  be  made  a  party  in  a  suit  by  the  as- 
signee to  obtain  a  title  :  Oldham  v.  Rowan,  3  Bibb  534.    And  in  Bruen  v. 


634  ADAMS'S    DOCTRINE    OF    EQUITY. 

The  same  principle  of  requiring  that  all  conciu'rent 
claims  shall  be  bound,  is  applicable  to  many  cases  which 
fall  under  the  first  head  of  interest.  For  where  an  inte- 
rest exists  which  requires  protection,  it  is  possible  that  a 
claim  exists  in  respect  of  that  interest,  and  the  defendant 
is  entitled  to  have  all  such  claims  settled  together,  so  that 
the  matter  may  be  completely  and  effectually  disposed 
of.  (o)  Its  operation,  however,  is  excluded  where  a  per- 
son possessing  a  partial  interest  is  seeking  redress  for  an 
injury,  or  enforcement  of  a  contract,  which  affects  himself 
and  his  partial  interest  alone,  although  in  some  sense  it 
relates  to  the  entire  subject-matter ;  e.  (/.,  where  an  occu- 
pier complains  of  an  injury  to  his  possessory  right,  with- 
out seeking  to  establish  any  claim  respecting  the  inher- 
itance, or  where  a  partner  or  co-owner  complains  of  fraud 
practised  on  himself,  although  other  parties  have  been 
r*^181  similarly  defrauded,  (jt?)  *And,  in  like  manner, 
one  of  several  cestuis  que  trust  may  proceed  sepa- 
rately for  his  share  of  the  fund,  where  the  respective 
shares  have  been  already  ascertained.^  But  it  is  other- 
wise if  an  account  be  necessary  to  ascertain  the  shares, 

(o)  Munch  V.  Cockerell,  8  Sim.  219,  231. 

{p)  Tooth  V.  Dean  of  Canterbury,  3  Sim.  61 ;  Semple  v,  Birmingham 
Railway,  9  Id.  209 ;  Blain  v.  Agar,  2  Id.  289 ;  Mare  v.  Malachy,  1  M.  & 
C.  559;  Turney  v.  Borlase,  11  Sim.  17;  Bridget  v.  Hames,  1  Coll.  72. 

Crane,  1  Green  Ch.  347,  it  was  decided  that  where  a  judgment,  which  is  a 
lien  on  land  mortgaged,  is  assigned  absolutely\  and  unconditionally,  the 
assignor  is  not  a  necessary  party  to  a  bill  for  foreclosure. 

When  a  plaintiff  parts  with  all  his  interest  in  the  subject-matter  of  the 
suit,  the  case  can  be  no  longer  prosecuted  in  his  name ;  but  the  assignee 
must  make  himself  a  party  by  an  original  bill  in  the  nature  of  a  supple- 
mental bill:  Mason  v.  York  R.  R.  Co.,  52  Maine  82. 

*  Hares  ».  Stringer,  15  Beav.  206 ;  Piatt  v.  Oliver,  2  McLean  307  ;  see 
Chapman  «.  Hamilton,  19  Ala.  121.  See  now,  in  England,  15  &  16  Vict. 
c.  86,  8.  42 ;  Macleod  v.  Annesley,  17  Jur.  612. 


OF    PARTIES.  636 

if  the  fund  itself  has  been  lost  and  its  replacement  is  re- 
quired, or  if  the  entirety  is  in  any  way  to  be  dealt  with. 
And  it  is  doubtful  whether  a  trustee  can  ordinarily  be 
compelled  to  divest  himself  of  any  part  of  his  trust,  un- 
less all  the  cestuis  que  trust  are  before  the  Court,  so  that 
he  can  get  rid  of  the  whole.  («^) 

The  operation  of  the  rules  requiring  that  all  persons 
should  be  parties  to  a  suit  who  had  any  interest  which 
the  decree  might  affect,  or  any  concurrent  claim  which  it 
ought  to  bind,  was  often  productive  of  serious  inconve- 
nience, by  compelling  the  joinder  of  claimants  in  small 
amounts,  who  would  willingly  have  left  their  rights  in 
the  hands  of  the  Court  rather  than  to  incur  the  expense  of 
appearing  to  litigate  them.  This  evil  is  now  remedied  by 
orders  of  the  Court,  declaring  that  where  no  direct  relief 
is  sought  against  a  party,  such  party,  on  being  served 
with  a  copy  of  the  bill,  may  be  bound  by  the  proceeding 
without  the  necessity  of  appearing  to  the  bill ;  subject 
however,  to  the  discretion  of  the  plaintiff  as  to  whether 
he  will  compel  such  an  appearance,  and  to  that  of  the  de- 
fendant as  to  whether  he  will  submit  to  be  bound  without 
it.^  The  person  possessing  the  interest  must  still  be  a 
party,  but  by  the  operation  of  these  orders  he  may  be  so 
without  serious  expense,  (r) 

3.  The  joinder  of  parties  who  are  liable  to  exonerate 
the  defendant,  or  to  contribute  with  him  to  the  plaintiff's 
claim,  is  in  many  cases  dispensed  with  under  the  present 
practice.  The  principle  was  that  of  requiring  a  complete 
decree,  and  a  final  ascertainment  of  the  amount  of  lia- 

(5)  Munch  V.  Cockerell,  8  Sim.  219,  231 ;  Henley  v.  Stone,  3  Beav.  355  ; 
Goodson  V.  Ellison,  3  Russ.  583 ;  [Lenaghan  v.  Smith,  2  Phillips  302.] 
(r)  Supra,  Prayer  of  Process. 

^  See  Rules  in  Eq.  U.  S.  Courts,  No.  liv. ;  Penn.,  No.  xviii. 


636  ADAMS's    DOCTRINE    OF    EQUITY. 

r*Qiq-i    ^ility,  *so  that  any  one  of  the  parties  liable,  on 
satisfying  the  plaintiff,  might  obtain  contribution 
from  the  rest/ 

On  this  principle,  it  was  held,  that  if  several  parties 
were  co-obligors  in  a  joint  and  several  bond,  they  were 
all  necessary  parties  to  a  suit  for  payment,  with  the  ex- 
ception of  such  as  were  mere  sureties,  and,  therefore,  not 
liable,  to  contribution.  (§)^  So,  if  several  trustees  had 
committed  a  breach  of  trust,  they  must  have  been  all  par- 
ties to  a  suit  for  redress ;  but  if  the  act  complained  of 
were  an  actual  fraud,  no  right  of  contribution  arose,  and 
any  one  might  be  sued  alone.  (^)^  It  was  in  like  manner 
unnecessary  to  join  an  insolvent  in  the  suit,  because, 
whether  liable  or  not,  he  was  unable  to  contribute,  (w)  Of 
course,  if  the  absent  parties  were  primarily  liable,  so  that 
the  defendant  was  entitled,  not  only  to  a  contribution 
from  them,  but  to  an  actual  indemnify,  it  was  an  addi- 
tional reason  for  insisting  on  their  presence.     Therefore, 

{s)  Bland  v.  Winter,  1  S.  &  S.  246. 

{t)  Seddon  v.  Connel,  10  Sim.  79 ;  Attorney-General  v.  Wilson,  1  Cr.  & 
Ph.  1 ;  [Oliver  v.  Piatt,  3  How.  U.  S.  333  ;  Cunningham  v.  Pell,  5  Paige 
612.] 

(m)  Seddon  v.  Connell,  10  Sim.  79. 

^  See  Purcell  v.  Maddox,  3  Munf.  79.  Where  a  judgment  is  a  lien  on 
different  parcels  of  land,  in  a  suit  by  one  of  the  several  owners  against  the 
judgment  creditors,  he  must,  in  order  to  a  decree  for  contribution,  make 
all  the  persons  interested  parties:  Avery  v.  Petten,  7  Johns.  Ch,  211. 
See,  also,  Campbell  v.  Mesier,  6  Johns.  Ch.  21  ;  Hooper  v.  Royster,  1 
Munf.  119;  Venableu.  Beaucharap,  3  Dana  321. 

*  So  all. the  obligors  in  a  bond  should  be  made  parties  to  a  bill  brought 
to  obtain  relief  against  it,  unless  in  a  special  case  of  collusion :  Pollard  v. 
Collier,  8  Ham.  43. 

*In  White  v.  Turner,  1  B.  Monr.  130,  it  was  held,  that  all  the  persons 
concerned  in  suppressing  a  will,  by  which  slaves  who  were  emancipated  are 
thereby  retained  in  slavery,  are  jointly  liable  to  a  decree  for  damages  ;  and 
if  one  of  the  parties  has  died,  his  representatives  should  be  made  parties 
to  the  suit  for  freedom. 


OF    PARTIES.       ,  637 

a  bill  could  not  be  filed  against  a  surety  without  the  prin- 
cipal, (e^)^  nor  against  an  heir-at-law  for  payment  of  debts, 
without  the  executor  ;(w)  but  an  order  has  now  been 
made,  directing  that  if  the  plaintiff's  demand  be  several  as 
well  as  joint,  and  whether  the  defendants  be  liable  as 
principals  or  sureties,  he  may  proceed  against  all  or  any 
at  his  own  option.  (2:) 

It  sometimes  happens,  that  compliance  with  the*  rule 
requiring  the  joinder  of  all  interested  parties  is  rendered 
practically  impossible  in  a  particular  case,  because  the 
persons  interested  are  too  indefinite  or  numerous  to  be 
individually  joined  in  the  suit.  In  this  case,  the  rule 
admits  of  modification  so  that  one  or  more  members  of 
a  class  may  sue  or  be  sued  on  behalf  of  the  whole,  pro- 
vided *the  interest  of  every  absent  member  in  rH:09r)-i 
the  claim  made  or  resisted  is  identical  with  that 
of  the  members  who  are  personally  before  the  Court.^ 

{v)  Brooks  V.  Stuart,  1  Beav.  512. 

{w)  Knight  r.  Knight,  3  P.  AVms.  333. 

{x)  32(1  Order  of  August,  1841.     [See  Rule  li.,  U.   S.  Courts  in  Eq.  5 
Penn.  xxv.] 
— — . — . — . — _ ^ — 

1  Roane  v.  Pickett,  2  English  (Ark.)  510  ;  Ilart  v.  Coffee,  4  Jones  Eq. 
322.  So  the  principal  debtor  must  be  a  party  in  a  bill  by  a  surety  against 
the  creditor  for  relief:  Vilas  v.  Jones,  1  Comst.  284:  Bronson,  J.  So  also 
he  must  be  in  a  bill  by  a  co-surety  to  make  another  contribute ;  Trescot  r. 
Smyth,  1  3IcCord's  Ch.  301.  Where  a  party  liable  to  contribute  is  insol- 
vent, he  need  not  be  joined  in  the  bill:  Watts  v.  Gayle,  20  Ala.  817  ;  Mon- 
tague V.  Turpin,  8  Gratt.  453.  But  the  insolvency  must  be  at  the  time  of 
bill  tiled  :  Young  v.  Lyons,  8  Gill  162.  See,  in  addition,  as  to  these  points, 
note,  p.  269.  supra.  Where  a  surety  has  paid  the  debt  of  his  principal,  he 
may  proceed  against  him,  or  may  subject  a  fund  which  he  has  provided, 
•without  making  the  creditor  a  party  ;  but  where  the  debt  is  unpaid  and 
the  surety  seeks  for  exoneration,  there,  as  a  matter  of  course,  the  creditor 
must  be  made  a  party ;  for  the  relief  is  not  to  have  the  amount  paid  to  the 
surety,  but  paid  to  the  creditor  who  is  decreed  to  accept  it  in  discharge  of 
his  liability :  Murphy  v.  Jackson,  5  Jones  Eq.  14. 

*  See  upon  this  subject,  Clements  v.  Bowes,  1  Drewr.  684  5  16  Jur.  96  ; 


638  ADAMS^'S    DOCTRINE    OF    EQUITY. 

The  most  ordinary  instances  of  this  dispensation  are  in 
suits  by  creditors  or  legatees.  For  as  a  single  creditor  or 
legatee  may  sue  for  his  demand  out  of  the  personal  assets, 
without  bringing  the  others  before  the  Court,  it  is  rather 
matter  of  convenience  than  of  indulgence  to  permit  such 
a  suit  by  a  few  on  behalf  of  all ;  and  it  tends  to  prevent 
several  suits  by  several  creditors  or  legatees,  which  would 
be  inconvenient  in  the  administration  and  burdensome 
on  the  fund  administered.  (^)^     The  rule,  however,  is  not 

( y)  Mitf.  166. 

Macbride  v.  Lindsay,  9  Hare  574  ;  Long  v.  Storie,  22  L.  J.  Ch.  200  ;  Salo- 
mons V.  Laing,  12  Beav.  377  ;  Duke  of  Devon  ».  Eglin,  14  Id.  530 ;  Mul- 
lock V.  Jenkins,  Id.  628  ;  Ilarmer  v.  Gooding,  3  De  G.  &  Sm.  407  ;  Carey 
V.  Hoxey,  11  Ga.  645;  Putnam  v.  Sweet,  1  Chand.  (Wis.)  287  ;  Hill  v. 
Commissioners,  1  Pars.  Eq.  501 ;  Smith  v.  Swormstedt,  16  How.  U.  S.  288  ; 
Whitney  v.  Mayo,  15  111.  251 ;  Thornton  v.  Hightower,  L7  Ga.  1  ;  Stimson 
V.  Lewis,  36  Verm.  91  ;  Ilendrix  v.  Money,  1  Bush  (Ky.)  306 ;  Smith  v. 
Bartholomew,  42  Verm.  356;  Davis  u.  Clabaugh,  30  Md.  508.  Nuraerous- 
ness  does  not  always  and  necessarily  constitute  an  exceptioi^to  the  general 
rule,  that  all  parties  interested  must  be  joined :  it  is  only  where  they  are 
so  very  numerous  that  to  join  them  would  be  impracticable;  without  al- 
most interminable  delays  and  other  inconveniences,  which  would  obstruct 
and  probably  defeat  the  ends  of  justice  :  Carey  v.  Hoxey,  11  Ga.  645. 
Whether  a  case  is  within  the  exception  is  a  matter  of  discretion  with  the 
Chancellor,  and  he  must  be  fully  advised  by  allegation  and  proof  of  the 
extent  of  the  litigation  :  Id. ;  Society  for  Propagation  of  Gospel  v.  Hart- 
land,  2  Paine  C.  C.  536.  Thus,  on  a  bill  filed  by  some  next  of  kin,  on  be- 
half of  themselves  and  all  others,  the  court  will  direct  that  some  evidence 
be  produced  to  show  that  the  others  were  inconveniently  numerous,  before 
the  decree  is  drawn  up  :  Leathart  v.  Thome,  15  Jur.  162,  762.  On  a  bill 
by  some  shareholders  of  a  company  on  behalf  of  the  rest,  the  directors,  so 
far  as  no  relief  is  sought  against  them,  do  not  constitute  a  distinct  class 
from  the  rest,  so  as  to  be  necessary  parties  :  Clements  v.  Bowes,  16  Jur. 
96  ;  1  Drcwr.  684.  But  a  bill  on  behalf  of  all  shareholders,  complaining 
of  transactions  in  which  some  have  concurred,  cannot  be  maintained :  Kent 
V.  Jackson,  14  Beav.  369 ;  2  De  G.,  M.  &  G.  49. 

See  also,  Rule  No.  xlviii.,  U.  S.  Courts  in  Equity  :  No.  xxii.,  Penna. ;  by 
which  it  is  provided  that  where  the  parties  are  very  numerous,  the  court 
may,  in  its  discretion,  dispense  with  the  joinder  of  all. 

*  One  legatee  may  file  a  bill  in  behalf  of  himself  and  the  other  legatees 


OF    PARTIES.  639 

confined  to  cases  of  this  class,  but  has  been  extended  to 
other  cases  where  several  persons  have  distinct  rights  on 
a  common  fund,  as  creditors  under  a  trust  deed,  residuary 
legatees,  or  next  of  kin ;  and  in  such  cases,  if  the  parties 
are  very  numerous,  one  has  been  allowed  to  sue  on  behalf 
of  all,  although  he  could  not  have  sued  for  his  sej^arate 
share  without  bringing  the  others  before  the  Court.  The 
ground  for  this  indulgence  is,  that  if  all  were  made  actual 
parties  the  suit  would  be  liable  to  frequent  abatements, 
and  it  would  be  practically  impossible  to  bring  it  to  a 
hearing.  The  Court,  however,  in  such  cases  will  not 
proceed  to  a  decree  until  it  is  satisfied  that  the  interest 
of  all  is  fairly  represented,  and  that  there  would  be  a 
preponderating  inconvenience  in  bringing  them  individu- 
ally before  it.(^) 

The  same  principle  applies  where  there  is  a  common 

(z)  Mitf.  1G7;  Harvey  v.  Harvey,  4  Beav.  215  ;  Hawkins  i\  Hawkins,  1 
Hare  543. 

who  may  choose  to  come  in,  against  the  executors  for  an  account  and  pay- 
ment ;  but  where  the  bill  is  for  the  residue,  all  the  residuary  legatees  must 
be  made  parties:  Brown  v.  Ricketts,  3  Johns.  Ch.  553  ;  Davoue  v.  Fanning, 
4  Id.  199.  But  see  Hallett  i:  Hallett,  2  Paige  Ch.  15,  in  which  it  was  held 
that  one  residuary  legatee  may  file  a  bill  on  behalf  of  himself  and  all 
others  standing  in  the  same  situation,  and  it  is  not  necessary  to  make  them 
all  parties  to  the  suit. 

In  a  suit  against  the  personal  representatives  of  a  deceased  debtor  to  re- 
cover a  debt  due  from  his  estate,  it  is  only  necessary  for  the  coAiplainant 
to  file  the  bill  in  behalf  of  himself  and  of  all  other  creditors  in  the  same 
situation,  when  it  appears  upon  the  face  of  the  bill  that  there  will  be 
a  deficiency  in  the  fund,  and  that  there  are  other  creditors  entitled  to 
a  ratable  proportion  with  the  complainants :  Dias  v.  Bouchard,  10  Paige 
445. 

As  to  the  right  of  one  distributee  of  an  estate  to  file  a  bill  on  behalf  of 
himself  and  other  distributees,  and  whether  to  a  bill  by  one  distributee, 
the  others  must  be  made  parties,  see  Messervey  ».  Barelli,  Riley's  Gh.  138  ; 
Cherry  r.  Belcher,  5  Stew.  &  Port.  133  ;  Turley  v.  Young,  5  J.  J.  Marsh. 
133  ;  Richardson  r.  Hunt,  2  Munf.  148. 


640  ADAMS's    DOCTRINE    OF    EQUITY. 

right  against  the  defendants,  e.  g.,  where  relief  is  sought 
on  behalf  of  a  partnership  or  other  numerous  body 
against  strangers,  or  on  behalf  of  all  the  members  of 
such  body  except  the  defendants,  against  members  who 
have  committed  .a  wrong.  Such  a  bill  has  accordingly 
been  sustained  on  behalf  of  a  company  against  the  direc- 
r*^91 1  ^^^^  ^^  redress  or  "-'prevent  a  misapplication  of  the 
funds,  (a)  on  behalf  of  the  inhabitants  of  a 
parish  against  the  commissioners  under  an  act  of  Parlia- 
ment to  restrain  an  injury  to  their  common  right,  (^)  and 
on  behalf  of  a  company  against  third  parties  to  enforce  or 
rescind  a  contract,  or  to  obtain  an  injunction  against  pro- 
ceedings at  law.(c)^     And  e  converso  it  has  been  held  that 

(a)  Chancery  v.  May,  Pr.  in  Ch.  592  ;  Hichens  v.  Congreve,  4  Euss.  502  ; 
Preston  r.  Grand  Collier  Dock  Company,  11  Sim.  327  ;  Mozley  v.  Alston, 
1  Ph.  790. 

(6)  Attorney-General  v.  Heelis,  2  S.  &  S.  67  ;  Bromley  v.  Smith,  1 
Sim.  8. 

(c)  Taylor  v.  Salmon,  4  M.  &  C.  134 ;  Small  v.  Attwood,  Younge  407  : 
Fenne  v.  Craig,  3  Y.  &  C.  216  ;  Lund  v.  Blanshard,  4  Hare  9  and  290. 

^  Where  the  associates  or  shareholders  of  a  private  association  are  numer- 
ous, a  bill  may  be  filed  by  one  of  such  associates,  on  behalf  of  himself  and 
all  the  others,  against  the  trustees  of  such  association,  to  compel  the  execu- 
tion of  the  ti'ust,  and  for  an  account  and  distribution  of  the  funds  and  pro- 
perty of  the  association  among  the  shareholders.  And  it  is  not  necessary 
that  all  of  the  associates  should  unite  in  a  bill  for  that  purpose :  Mann  .v. 
Butler,  2  Barb.  Ch.  362 ;  Beatty  v.  Kurtz,  2  Peters  566 ;  The  New  London 
Bank  v.  tee,  11  Conn.  112.  But  the  others  must  either  be  made  parties 
defendant,  or  the  suit  must  profess  to  be  as  well  in  their  behalf  as  that  of 
the  complainants :  Whitney  v.  Mayo,  17  111.  252 ;  New  England  Bank  v. 
Stockholders,  &c.,  6  R.  I.  191.  Where  a  large  number  of  persons  are  asso- 
ciated for  the  purposes  of  trade,  the  legal  title  to  all  their  property  being 
in  a  part  of  them  for  the  benefit  of  the  whole,  it  is  sufficient  if  those  hav- 
ing the  legal  title  be  made  parties  defendant  or  complainant  in  a  bill  in 
equity :  Martin  v.  Dryden,  1  Gilm.  187. 

But  a  bill  will  not  lie  by  a  freeholder  or  inhabitant  of  a  town,  in  behalf 
of  the  town,  respecting  its  common  property  without  the  consent  of  the 
town  duly  declared  :  Denton  v.  Jackson,  2  Johns.  Ch.  320.     Nor  can  indi- 


OF    PARTIES.  ^  641 

where  a  person  has  a  right  against  several  individuals  who 
are  liable  to  common  obligations,  a  bill  may  be  filed  against 
some  on  behalf  of  all,  provided  such  a  number  be  brought 
before  the  Court  as  will  fairly  represent  their  interests.^ 
And  on  a  bill  so  framed  the  Court  will  make  a  decree 
binding  all,  although  so  far  as  the  absent  parties  are  con- 
cerned it  cannot  make  them  do  any  specific  iict.{d) 

In  order,  however,  that  the  principle  of  the  exception 
may  apply,  it  is  essential  that  the  parties  represented 
and  those  who  profess  to  represent  them  should  have 
strictly  identical  interests.  If  that  be  not  the  case,  but 
the  suit  be  one  which  will  bring  into  controversy  their 
mutual  rights,  they  must  all  be  personally  before  the 
Court.  As,  for  example,  where  the  real  object  of  a  suit 
is  to  obtain  a  decision,  whether  consistently  with  the 
articles  of  a  company  there  can  be  a  dissolution  and  divi- 

{d)  Meux  V.  Maltby,  2  Sw.  277;  Adair  v.  New  River  Company,  11  Ves. 
429 ;  Lanchester  v.  Thompson,  5  Mad.  4,  13  ;  Attwood  v.  Small,  9  Law  J. 
Ch.  132;  6C1.  &F.  232. 

vidua]  stockholders  of  an  incorporated  company  JSle  a  bill  against  the  agent 
and  treasurer  of  the  company  for  misconduct  and  account ;  such  a  bill 
should  emanate  from  and  be  filed  in  the  name  of  the  corporate  body.  In 
some  cases  individual  stockholders  can  file  bills,  but  only  where  the 
officers  have  the  control,  and  are  guilty  of  breach  of  duty  as  trustees : 
Forbes  v.  Whitlock,  3  Ed.  Ch.  446  ;  Bronson  v.  La  Crosse  R.  R.  Co.,  2  Wall. 
S.  0.  302. 

A  single  stockholder  may  file  a  bill  on  behalf  of  himself  and  others,  to 
restrain  directors  of  a  company  from  acts  ultra  vires :  Natusch  v.  Irving, 
Appendix  to  Gow  on  Partnership  576 ;  Colman  v.  The  Eastern  Counties 
Railway  Co.,  10  Beav.  1 ;  Simpson  v.  The  Hotel  Co.,  8  II.  L.  Cas.  717; 
Gifibrd  r.  The  New  Jersey  R.  R.  Co.,  2  Stockton  171  ;  Stevens  v.  Rutland 
&  Burlington  R.  R.,  29  Yerm.  545 ;  see,  also,  Philadelphia  &  Erie  R.  R.  v. 
Catawissa  R.  R.,  53  Penn.  St.  20. 

^  In  a  bill  against  an  unincorporated  banking  company,  the  members  of 

which  are  numerous,  and  in  part  unknown,  it  is  not  necessary  to  bring  all 

the  stockholders  before  the  Court,  before  a  decree  can  be  made  :  Mande- 

ville  V.  Riggs,  2  Peters  482.     See,  also,  Dana  v.  Brown,  1  J.  J.  Marsh.  304. 

41 


642  AD4MS'S    DOCTRINE    OF    EQUITY. 

sion  of  the  funds,  or  whether  an  alleged  dissolution  is 
fraudulent,  or  for  the  purpose  of  obtaining  directions  for 
managing  the  business,  or  having  the  partnership  dissolved 
and  the  like,  a  bill  would  be  held  objectionable  unless  all 
the  partners  were  parties,  because  every  one  of  the  absent 
partners  would  have  a  separate  and  substantial  interest  in 
the  question  of  right,  (e)^ 

r*qo9-i  *It  appears  to  have  been  at  one  time  consi- 
dered impossible  that  any  bill  for  Avinding  up  a 
partnership  should  be  sustained  unless  a  dissolution  were 
also  sought,  and  every  partner  were  personally  joined. 
In  the  case  of  unincorporated  joint  stock  companies,  and 
of  other  numerous  partnerships,  this  rule  operated  prac- 
tically as  a  denial  of  relief,  but  it  has  been  relaxed,  as 
we  have  already  seen,  in  their  favor,  and  bills  have  been 
sustained  which  asked  more  limited  relief,  viz.,  that  the 
assets  of  such  partnership,  on  its  abandonment  or  insol- 
vency, might  be  collected  and  applied  in  discharge  of  the 
debts,  leaving  questions  of  distribution  and  contribution 
as  between  the  partners  entirely  open  for  future  settle- 
ment. A  bill  of  this  latter  kind  does  not  bring  into  con- 
troversy the  rights  of  individual  partners,  and  may  there- 
fore be  sustained  by  a  few  partners,  on  behalf  of  all, 
against  the  directors  of  the  company.  And  it  has  been 
suggested  that,  even  on  a  bill  praying  a  dissolution,  the 
presence  of  all  might,  perhaps,  be  dispensed  with,  pro- 

(e)  Beaumont  v.  Meredith,  3  V.  &  B.  180;  Evans  v.  Stokes,  1  K.  24  ;  Van 
Sandau  v.  Moore,  1  Russ.  441 ;  Long  v.  Yonge,  2  Sim.  369. 

^  If  a  bill  in  equity  be  brought  by  one  of  several  partners,  founded  on 
partnership  transactions,  and  some  of  the  partners  are  insolvent,  still  they 
must  be  made  parties ;  and,  if  bankrupts,  their  assignees  should  be  made 
parties  in  their  place :  Fuller  v.  Benjamin,  23  Maine  255.  See  also,  Iloy 
r.  McMurry,  1  Litt.  364 ;  Dozier  v.  Edwards,  3  Litt.  67  ;  Noyes  v.  Sawyer, 
3  Verm.  160.    Yet  see  Townsend  v.  Auger,  3  Conn.  354. 


OF    PARTIES.  643 

vided  there  were  a  strong  necessity  shown,  and  sufficient 
parties  were  before  the  Court  to  represent  each  conflicting 
interest,  and  to  discuss  the  questions  freely  and  without 
restraint.  (/) 

In  cases  where  persons  interested  are  out  of  the  juris- 
diction of  the  Court,  it  is  sufficient  to  state  that  fact  in 
the  bill,  and  to  pray  that  process  may  issue  on  their 
return ;  and  if  the  statement  be  substantiated  by  proof 
at  the  hearing,  their  appearance  in  the  suit  will  be  dis- 
pensed with.(^)^  The  power  of  the  Court  to  proceed  to 
a  decree  in  their  absence  will  depend  on  the  nature  of 
their  interest,  and  the  mode  in  which  it  will  be  affected 
by  the  decree.  If  they  are  only  passive  objects  of  the 
judgment  of  the  Court,  or  their  rights  are  incidental  to 
those  of  parties  before  the  Court,  a  complete  determina- 
tion may  be  obtained.  *But  if  they  are  to  be  riHono-i 
active  in  performing  the  decree,  or  if  they  have 
rights  whoUy  distinct  from  those  of  the  other  parties, 
the  Court,  in  their  absence,  can  not  proceed  to  a  deter- 
mination  against  them.(^)^     The  powers   conferred   by 

(y)  Supra,  Partnership;  Wallworth  v.  Holt,  4  M.  &  C.  619;  Richardson 
V.  Larpent,  2  N.  C.  C.  507  ;  Richardson  v.  Hastings,  7  Beav.  301,  323 ; 
Clough  V.  Radcliffe,  1  De  G.  &  Sm.  164;  Apperly  v.  Paige,  1  Ph.  779; 
Wilson  V.  Stanhope,  2  Coll.  629. 

{g)  Burton  v.  Egginton,  1  Hare  488 ;  Munoz  v.  De  Mastet,  1  Beav.  109. 

{h)  Mitf.  on  Pleading  32 ;  Fell  v.  Brown,  2  B.  C.  C.  276 ;  Brown  v. 
Blount,  2  Russ.  &  M.  83 ;  Willats  v.  Busby,  5  Beav.  193  ;  1  Dan.  Ch.  P. 
199,  200. 

^  See  Spivey  v.  Jenkins,  1  Ired.  Eq.  126 ;  Milligan  v.  Milledge,  3  Cranch 
220 ;  Lainhart  v.  Reilly,  3  Dessaus.  590  ;  Rule  No.  xlvii.,  U.  S.  Courts  in 
Eq. ;  No.  XX.,  Penna. 

*  See  Joy  v.  Wirtz,  1  Wash.  C.  C.  517 ;  Mallow  r.  Hinde,  12  Wheat. 
193;  Corron  v.  Mellaudon,  19  How.  113.  In  a  suit  to  recover  a  debt 
against  the  estate  of  a  deceased  partner,  the  other  partners  are  proper  and 
necessary  parties ;  and,  although  when  they  are  out  of  the  jurisdiction  of 
the  Court  they  may  be  dispensed  with,  yet  this  exception  does  not  apply 


644  ADAMS's    DOCTRINE    OF    EQUITY. 

statute  of  serving  such  parties  with  process  abroad,  and 
thus  bringing  them  before  the  Court,  will  be  presently 
considered. 

to  cases  involving  important  rights  of  the  absent  partners,  and  especially 
not  to  cases  where  the  facts  are  mainly  in  their  knowledge,  or  where  the 
circumstances  occurred  in  the  place  where  they  are :  Vose  v.  Philbrook,  3 
Story  336.  See  Burvyell  v.  Cawood,  2  How.  (U.  S.)  575 ;  Wilson  v.  City 
Bank,  3  Sumner  422. 

The  Supreme  Court  of  the  United  States  will  not  make  a  final  decree 
upon  the  merits  of  a  case,  unless  all  persons  essentially  interested  are 
parties,  although  some  of  those  persons  are  not  within  the  jurisdiction  of 
the  Court:  Russell  v.  Clark,  7  Craucb  69]  but  see  now  the  Rule  in  Equity, 
No.  xlyii. 


OF    PROCESS    AND    ArPEARANCE.  645 


^CHAPTER    Til.  [*324] 

OF   PROCESS   AND    APPEARANCE. 

After  the  bill  has  been  filed  it  is  next  requisite  that 
the  subpoena}  should  be  served ;  that  the  defendant  should 
enter  his  appearance ;  and  that  after  appearance  he  should 
put  in  his  defence.  The  defence  may,  as  we  shall  here- 
after see,  be  of  four  kinds.  Disclaimer,  Demurrer,  Plea, 
and  Answer.  But  the  most  usual  form,  and  the  only  one 
to  which  compulsory  process  applies,  is  that  of  answer. 

The  ordinary  service  of  subpoena  is  by  delivering  a  copy 
to  the  defendant  personally,  or  leaving  one  at  his  place  of 
actual  residence.  And  in  special  cases,  where  an  ab- 
sconding or  absent  defendant  has  a  recognised  agent  in 
the  matter  litigated,  substituted  service  on  such  agent  has 
been  allowed.  («)^  But  as  a  general  principle  the  Coui't 
has  no  inherent  authority  to  dispense  with  service  on  the 
defendant  himself,  or  to  authorize  any  service  beyond  the 
limits  of  its  own  jurisdiction,  (i)^ 

(a)  Hobhouse  v.  Courtney,  12  Sim.  140;  Murray  ».  Vipart,  1  Ph.  521. 
(6)  Whitmore  v.  Ryan,  4  Hare  612. 

^  The  writ  of  subpoena  is  now  abolished  in  England,  and  instead  thereof 
a  printed  bill  is  served  on  the  defendants.  In  some  of  the  United  States 
the  subpccna  is  still  in  use ;  in  others,  as  in  Pennsylvania,  service  by  copy 
of  the  bill  is  substituted.     See  Daniel's  Chan.  Prac.  428. 

^  See  on  this  subject,  Eckert  v.  Baeert,  4  Wash.  C.  C.  370 ;  Ward  v.  Seabry, 
Id.  426,  472. 

'  The  Court  of  Chancery  has  power,  under  the  recent  General  Orders,  to 
direct  service  of  its  process  abroad  :  Drummond  v.  Drummond,  L.  R.  2  Eq. 


646  ADAMS's    DOCTRINE    OF    EQUITY. 

Assuming  the  subpoena  to  be  duly  served,  the  defendant 
must  next  appear.  If  he  be  contumacious  and  refuse,  his 
disobedience  may  be  punished  as  a  contempt. 

The  processes  of  contempt  were  originally  five,  viz. : — 

1.  A  writ  of  attachment  directed  to  the  sheriff  of  the 
defendant's  county,  commanding  that  the  defendant's  per- 
son should  be  attached.  To  this  writ  the  sheriff  might 
return,  1.  That  he  had  the  defendant  in  custody  ;  2.  That 
he  had  taken  him,  but  had  accepted  bail;  3.  That  he 
P^qnc-i    could  not  *find  him  within  his  bailiwick.    On  the 

first  of  these  returns  being  made,  the  defendant 
was  brought  up  by  habeas  corpus,  on  the  second  by  the 
messenger  of  the  Court,  or  the  serjeant-at-arms,  and  in 
either  case  was  committed  to  the  Fleet,  now  altered  to  the 
Queen's  Prison,  On  the  third  return,  that  of  nan  est  in- 
ventus, the  next  process  of  contempt  issued. 

2.  A  writ  of  attachment  with  proclamations  ;  on  which 
the  same  returns  might  be  made,  and  the  same  results 
would  follow. 

3.  A  writ  of  rebellion  directed  to  commissioners  ap- 
pointed by  the  Court,  and  extending  into  all  the  coun- 
ties of  England.  On  this  process  no  bail  could  be  taken, 
but  the  commissioners  either  brought  the  defendant  up  in 
custody,  on  which  he  was  committed  to  the  Fleet ;  or  made 
a  return  of  non  est  inventus,  upon  which  followed, 

An  order  that  the  serjeant-at-arms,  as  the  immediate 
officer  of  the  Court,  should  effect  the  arrest.  If  an  arrest 
were  made  under  this  process,  it  was  followed,  like  other 
arrests,  by  committal  to  the  Fleet.     But  if  the  return 

335 ;  affirmed  in  L.  R.  2  Ch.  Ap.  32.  In  some  of  the  states,  publication 
is  authorized  by  statute,  in  the  case  of  non-resident  defendants.  See 
Haring  v.  Kauffman,  2  Beas.  297.  Such  provisions  have  been  held  to  in- 
clude lunatics  in  their  effect :  Sturges  ».  Longworth,  1  Ohio  St.  N.  S.  550. 


OF    PROCESS    AND    APPEARANCE.  647 

■were  non  est  inventus,  there  was  no  further  process  against 
the  person. 

5.  A  writ  of  sequestration,  issuable  only  on  the  return 
non  est  inventus  of  the  serjeant-at-arms,  or  on  a  defendant 
in  custody  being  committed  to  the  Fleet.  This  WTit  was 
issued,  not  against  the  person,  but  against  the  property 
of  the  defendant,  and  authorized  the  sequestrators  to  take 
his  goods  and  personal  estate,  and  to  enter  on  his  real 
estate,  and  to  sequester  the  rents  and  profits.  If  the  se- 
questration proved  ineffectual,  there  was  no  further  pro- 
cess. And  in  the  reign  of  Elizabeth,  even  the  right  to 
sequester  was  disputed,  and  it  was  said  by  the  judges  that 
the  Court  had  no  authority  beyond  personal  commitment, 
and  that  if  a  sequestrator  were  killed  in  the  execution  of 
process,  it  was  not  murder,  {c) 

*In  the  case  of  a  person  having  privilege  of  r^qo^n 
peerage  or  Parliament,  and  exempt,  therefore, 
from  committal  for  civil  contempt,  (J)  a  sequestration  nisi 
was  substituted  for  an  attachment,  which  if  no  cause  were 
shown  was  afterwards  made  absolute.  In  the  case  of  a 
corporation,  which  cannot  be  attached,  the  first  process 
was  by  distringas,  and  the  second  by  sequestration. 

Assuming  an  appearance  to  be  entered,  an  answer  was 
next  required.  And  if  this  were  refused,  the  process  of 
contempt  was  again  enforced ;  but  if  resisted  to  a  seques- 
tration, the  plaintiff  was  not  restricted  to  that  remedy,  but 
on  issuing  the  writ,  might  apply  to  the  Court  to  take  his 
bill  pro  confesso,  and  to  decree  against  the  defendant  on 
the  assumption  of  its  truth. 

If  a  decree  were  ultimately  made  against  the  defendant, 
its  performance  was  enforced  by  a  like  process  of  con- 

{c)  1  Smith  C.  P.  571. 

\d)  Welleslej's  Case,  2  R.  &  M.  639. 


648  ADAMS's    DOCTRINE    OF    EQUITY. 

tempt,  with  the  exception  that  the  attachment  was  not 
bailable. 

In  addition  to  other  inconveniences  of  being  in  con- 
tempt, it  has  the  effect  of  preventing  a  party  from  making 
any  application  to. the  Court  in  the  same  cause,  except  for 
the  purpose  of  clearing  such  contempt,  (e) 

It  is  obvious,  from  the  nature  of  the  process  of  con- 
tempt, that  if  a  defendant  absconded  so  as  to  avoid  its 
operation,  or  if,  when  arrested  under  it,  he  perversely  re- 
fused to  submit,  there  were  no  means  of  compelling  obe- 
dience. And  on  the  other  hand,  if  a  defendant  in  custody 
under  process  were  incapable  of  doing  the  required  act, 
his  committal  was  practically  imprisonment  for  life. 

Several  attempts  have  been  made  by  the  Legislature  to 
remedy  these  evils.  But  the  earliest  of  those  which  need 
here  be  noticed  is  that  made  by  1  Wm.  4,  c.  36,  after- 
wards amended  by  2  Wm.  4,  c.  58,  and  generally  known 
as  Sir  Edward  Sugden's  Act. 

The  provisions  of  this  act,  besides  abridging  under 
certain  circumstances  the  general  process  of  contempt, 
r*^271  ^PP^i®*^  ^especially  to  three  classes  of  persons  ; 
viz.,  absconding  defendants,  privileged  defend- 
ants, and  defendants  in  custody  under  process.  In  res- 
pect to  the  former  class,  it  authorized  the  Court  to  make 
an  order  for  the  defendant's  appearance,  and  on  due  pub- 
lication of  such 'order  to  dispense  with  both  service  and 
appearance,  and  proceed  at  once  to  take  the  bill  pro  con- 
fesso.  In  respect  to  the  other  two  classes,  it  authorized 
an  appearance  to  be  entered  for  them ;  shortened  the  steps 
for  taking  the  bill  pro  confesso,  and  conferred  on  bills  taken 
pro  confesso  under  it  additional  efficacy,  by  directing  that 
they  should  not  only  warrant  a  decree,  but  should  be  evi- 

(c).lDan.  Ch.  P.450. 


OF    PROCESS    AND    APPEARANCE.  649 

dence  in  any  other  proceeding  as  equivalent  to  an  admis- 
sion by  answer.  It,  at  the  same  time,  provided  for  the 
protection  of  a  defendant  in  custody,  by  requiring  that  he 
should,  within  a  limited  time,  be  brought  by  the  plaintiff 
to  the  bar  of  the  Court,  to  be  there  dealt  with  as  pointed 
out  by  the  act ;  and  that  within  a  further  limited  time, 
the  plaintiff  should  proceed  according  to  the  nature  of  the 
contempt  to  enter  an  appearance  for  him,  or  to  have  his 
bill  taken  pro  confesso,  and  that  in  default  of  his  so  doing, 
the  defendant  should  be  discharged. 

The  case  of  absent  defendants,  not  having  absconded 
to  avoid  process,  was  provided  for  to  a  limited  extent  by 
2  Wm.  4,  c.  33,  and  5  Wm.  4,  c.  82,  authorizing  service 
abroad.  But  those  acts  applied  to  such  suits  only  as  had 
reference  to  hereditaments  in  England,  Wales,  or  Ireland, 
or  to  encumbrances  thereon,  or  to  stock  or  shares,  or  the 
dividends  thereof. 

The  partial  remedies  afforded  by  these  acts  have  been 
extended  by  the  statutes  of  the  present  reign,  for  "facili- 
tating the  Administration  of  Justice  in  the  Court  of  Chan- 
cery," and  by  the  general  orders  made  under  them.(/) 

The  present  process  of  the  Court  for  enforcing  obedi- 
ence is  chiefly  regulated  by  those  orders,  and  it  is  there- 
fore *necessary  to  point  out  in  what  respects  r^ooo-i 
they  have  modified  the  previous  system. 

1.  They  have  remedied  some  of  the  difficulties  respect- 
ing service  of  process,  b}"^  directing  that  where  a  defend- 
ant, having  been  in  this  country  within  two  years  before 
the  subpoena  issued,  appears  to  have  absconded  to  avoid 
process,  an  order  for  his  appearance  duly  published  may 
be  substituted  for  such  service ;  and  that  when  a  defend- 

(/)  3  &  4  Yict  c.  94;  4  &  5  Vict.  c.  52;  8  &  9  Vict.  c.  105;  General 
Orders  of  August,  1841 ;  April,  1842;  and  May,  1845. 


650  ADAMS's    DOCTRINE    OF    EQUITY. 

ant  in  any  suit  is  out  of  the  jurisdiction,  an  order  may 
be  made,  on  satisfactory  evidence  of  his  probable  abode, 
authorizing  serAdce  abroad.  (^) 

2.  They  have  shortened  the  process  of  contempt  by 
abolishing  the  writ  of  attachment  with  proclamations, 
and  the  writ  of  rebellion  in  all  cases ;  and  by  abolishing 
the  use  of  the  messenger  and  serjeant-at-arms,  in  the  case 
of  contempts  for  non-appearance.  (7^) 

3.  They  have  provided  for  defaults  in  appearance,  by 
distinct  regulations  for  the  several  cases  of  an  adult  and 
capable  defendant  served  within  the  jurisdiction,  of  an 
absconding  defendant  on  whom  an  order  to  appear  has 
been  made,  of  an  infant  or  person  of  unsound  mind,  and 
of  a  defendant  served  out  of  the  jurisdiction ;  authorizing 
in  each  case  under  certain  restrictions  an  appearance  to 
be  entered  for  such  defendant.  (^)  And  their  effect  ap- 
pears to  be  that  on  neglect  by  a  defendant  to  appear,  the 
plaintiff  may  waive  all  process  of  contempt  and  enter  an 
appearance  for  him  ;  or  may,  at  his  option,  issue  an  attach- 
ment. But  on  the  return  of  this  writ,  whether  it  be  "  in 
prison,"  "  cepi  corpus,''  or  "  non  est  inventus"  he  can  issue 
no  further  process,  but  must  proceed  to  enter  an  appear- 
ance ;  for  in  the  first  case  he  is  expressly  bound  to  do  so 
by  1  Wm.  4,  c.  36,  s.  18  j  in  the  second  he  cannot  have 
a  messenger,  and  has,  therefore,  no  means  of  reaching  the 
P3291    defendant;  and  in  *the  third  he  cannot  have  a 

serjeant-at-arms,  and  a  sequestration  cannot  issue 
on  an  inferior  process. 

4.  They  have  provided  for  default  in  answering  after 
an  appearance,  whether  entered  by  or  for  the  defendant. 

In  this  case  there  are  three  modes  of  procedure  open  to 
the  plaintiff,  viz.,  by  process  of  contempt,  by  taking  the 

^^r)  1845,  xxxi.,  xxxiii.        {h)  1841,  vi.,  vii.        (i)  1845,  xxix.,  xxxvi. 


OF    PROCESS    AND    APPEARANCE.  651 

bill  pro  confesso,  or  by  going  into  evidence  without  an 
answer. 

If  he  adopt  the  first  course,  by  process  of  contempt,  he 
may  issue  an  attachment,  either  immediately  on  default, 
or  if  the  defendant  is  likely  to  abscond,  at  an  earlier 
period.  (Zr)  If  the  defendant  is  not  taken  on  the  attach- 
ment, the  plaintiff,  on  a  return  of  non  est  inventus,  may 
dispense  with  intermediate  process,  and  obtain  an  imme- 
diate sequestration.  (/)  K  he  is  taken,  the  plaintiff  must 
proceed  within  a  further  period  to  bring  him  to  the  bar  of 
the  Court,  to  answer  his  contempt  there. 

The  second  course  open  to  the  plaintiff  is  that  of  taking 
his  bill  pro  confesso}  And  he  is  entitled  under  the  pre- 
sent practice  to  adopt  this  course  immediately  on  the 
execution  of  an  attachment  for  want  of  answer,  or  at  any 
time  within  three  weeks  afterwards,  or  whenever  he  is 
unable,  with  due  diligence,  to  procure  an  attachment  or  sub- 
sequent process  for  want  of  answer  to  be  executed,  (m) 

The  third  course  is  that  of  going  into  evidence  with- 
out an  answer,  which,  where  the  plaintiff  can  rely  on 
the  strength  of  his  evidence,  is  occasionally  advisable. 
For  this  purpose  a  power  was  given  by  the  11th  and 
12th  rules  of  Sir  E.  Sugden's  Act  to  file  a  formal  answer 
in  the  defendant's  name.  By  the  present  rules  a  simpler 
plan  is  adopted ;  and  the  plaintiff  is  authorized  to  file  a 
traversing  note,  expressing  his  intention  to  proceed  as  if 
an  answer  had  been  filed  traversing  the  bill.(w) 

{k)  1845,  Ixxxii.  (I)  1841,  ix. 

(to)  1845,  Ixxvi.,  Ixxix.  (»)  1845,  lii.,  Iviii. 

1 

^  See  on  this  subject.  Rules  of  U.  S.  Courts  in  Equity,  No.  xviii.,  &c. ;  in 
Penna.,  No.  xiii.  and  xxix  ;  Guerry  v.  Durham,  11  Ga.  9;  Carradine  v. 
O'Connor,  21  Ala.  573.  A  decree  pro  confesso  cannot  be  made  against 
one  not  served :  Uurter  r.  Robbins,  '21  Ala.  585. 


652  ADAMS's    DOCTRINE    OF    EQUITY. 

p.^qqA-1  *The  outline  which  has  been  just  given  of  the 
process  of  the  Court  is  sufficient  to  explain  its 
general  character.  Its  precise  details  would  be  foreign 
to  the  purpose  of  the  present  Treatise,  (o)  And  we  will 
now  proceed,  on  the  assumption  of  a  regular  appearance 
and  defence,  to  consider  in  what  manner  such  defence 
should  be  made. 

(o)  1  Dan.  Chap.  7,  8,  9,  10,  12. 


OF    THE    DEFENCE.  653 


*CHAPTE^    IV.  [*331] 


OF    THE   DEFENCE. 

The  grounds  of  defence  in  equity  may  be  divided  into 
six  classes,  viz. : — 

1.  "Want  of  jurisdiction  in  the  Court,  where  the  equity 
alleged  is  exckisively  cognisable  in  some  other  Court  of 
equity,  and  not  in  Chancery ;  as  if  the  suit  be  for  land 
in  a  county  palatine,  or  the  defendant  claim  the  privilege 
of  a  University .  (a) 

2.  Disability  in  the  plaintiff  to  sue,  as  if  he  be  an  out- 
law, or  an  alien  enemy ;  or  in  the  defendant  to  be  sued, 
as  if  he  be  an  uncertificated  bankrupt ;  or  if  an  infant, 
married  woman,  or  lunatic,  attempt  to  sue  in  his  or  her 
own  name.(i) 

3.  A  decision  already  made,  or  still  pending,  on  the 
same  matter  in  the  Court  itself,  or  in  some  other  Court  of 
competent  jurisdiction.^ 

4.  Want  of  equity,^  where  no  case  is  established  on 

(o)  1  Dan.  Ch.  P.  509,  595.  (6)  1  Dan.  Chap.  3. 

*  See  Pearse  v.  Dobinson,  L.  R.  1  Eq.  241. 

*  A  defendant  need  not  demur  to  a  bill  that  is  wanting  in  equity,  but 
may,  at  any  time,  reach  the  defect  by  motion  to  dismiss :  Lockard  v.  Lock- 
ard,  16  Ala.  423  ;  but  see,  Brill  v.  Stiles,  35  111.  305.  But,  if  not  demurred 
to,  evidence  will  be  received  in  support  of  its  allegations :  Groves  ».  Ful- 
some, 16  Mo.  543.  A  special  reservation  by  a  defendant,  in  his  answer 
of  exceptions  to  the  suflSciency  of  a  bill  for  want  of  equity,  has  the  defect 
of  a  demurrer :  Lovett  v.  Longmire,  14  Ark.  339. 


654  ADAMS's    DOCTRINE    OF    EQUITY. 

the  merits.  This  includes  not  only  cases  where  there  is 
no  right  in  the  plaintiff,  but  also  those  where  his  right, 
though  in  fact  existing,  is  not  alleged  with  sufficient  cer- 
tainty in  his  bill,  or  where  it  is  a  right  at  law  and  not  in 
equity;  and  also  cases  of  lost  deeds,  interpleader,  &c., 
where  the  affidavit  required  for  transferring  the  jurisdic- 
tion into  equity,  has  not  been  annexed  to  the  bill.^ 

5.  Multifariousness  and  unduly  splitting  up  a  cause  of 
suit. 

6.  Want  of  parties. 

r*RH21  *The  doctrines  which  affect  the  validity  of  each 
of  these  defences  are  not  material  to  be  here  con- 
sidered. Our  present  inquiry  assumes  a  defence  to  exist, 
and  is  directed  to  the  form  in  which  it  should  be  made. 

The  forms  of  defence  are  four  in  number,  viz.,  Dis- 
claimer, Demurrer,  Plea,  and  Answer.  A  disclaimer 
denies  that  the  defendant  has  any  interest  in  the  matter. 
A  demurrer  submits  that  on  the  plaintiff's  own  showing 
his  claim  is  bad.  A  plea  avers  some  one  matter  of  avoid- 
ance or  denies  some  one  allegation  in  the  bill,  and  rests 
the  defence  on  that  issue.  An  answer  puts  on  the  record 
the  whole  case  of  the  defendant,  whether  by  way  of  de- 
murrer, of  avoidance,  or  of  denial,  and  whether  raising 
one  or  more  issues. 

A  defendant,  however,  is  not  necessarily  confined  to 
one  of  these  forms  of  defence,  but  may  use  two  or  more 
of  them  against  the  same  bill,  provided  he  applies  them 
to  different  parts,  and  distinctly  points  out  the  applica- 
tion of  each.^     Such,  for  example,  would  be  the  case  if 


^  An  objection  to  the  jurisdiction  of  the  court  on  the  ground  that  the 
plaintiff  has  an  adequate  remedy  at  law,  must  be  taken  by  answer,  or  it  is 
waived :  Tenney  v.  State  Bank,  20  Wis.  152.  See  also,  Pella  v.  Scholte,  21 
Iowa  463. 

^  By  the  Equity  Kules  of  the  United  States  Courts,  No.  xxxii.,  it  is  pro 


OF    THE    DEFENCE.  655 

the  bill  pray.ed  a  conveyance  of  land,  as  to  part  of  which 
the  defendant  was  a  purchaser  for  value  without  notice, 
and  as  to  the  residue  was  affected  by  notice.  In  this 
case  the  bill  would  in  effect  be  combining  two  claims  to 
be  met  by  the  defendant  in  different  ways ;  and  accord- 
ingly he  might  put  in  as  to  one  part  of  the  land  a  plea 
*^  that  he  had  purchased  for  value  without  notice,"  and 
as  to  the  other  part  a  disclaimer  of  all  interest,  (c)  A 
class  of  cases  also  exists,  in  which  the  claim  made  by 
the  bill  is  strictly  single,  and  cannot  therefore  be  met  by 
several  defences,  in  the  sense  in  which  the  expression 
has  just  been  used,  but  in  which  the  bill  itaelf  is  so  con- 
structed as  to  give  rise  to  a  peculiar  defence,  compounded 
of  plea  and  answer,  and  technically  termed  "a  plea  sup- 
ported by  an  answer."  The  nature  of  the  defence  will 
be  considered  under  the  head  of  Pleas. 

We  will  now  direct  our  attention  separately  to  each  of 
the  four  forms  of  defence. 

1.  A  disclaimer.     If  the  plaintiff,  demanding  certain 
*property,  untruly  state  that  the  defendant  has    r*qoo-i 
an  interest  therein,  the   defendant  may  put  in  a 
disclaimer  of  any  right  in  the  matter.     If  this  be  done, 
all  controversy  between  himself  and  the  plaintiff  is  at  an 

(c)  Mitf.  106,  319;  Wigr.  on  Discovery,  s.  12. 

vided  that  the  defendant  may,  at  any  time  before  the  bill  is  taken  for  con- 
fessed, or  afterwards,  with  the  leave  of  the  court,  demur  or  plead  to  the 
whole  bill,  or  to  part  of  it,  and  he  may  demur  to  part,  plead  to  part,  and 
answer  as  to  the  residue  ;  but  in  every  case  in  which  the  bill  specially 
charges  fraud  or  combination,  a  plea  to  such  part  must  be  accompanied 
with  an  answer  fortifying  the  plea,  and  explicitly  denying  the  fraud  and 
combination,  and  the  facts  on  which  the  charge  is  founded.  In  Pennsyl- 
vania (Rule  xxxii.)  no  demurrer  or  plea  is  allowed  to  be  filed  unless  sup- 
ported by  affidavit  that  it  is  not  interposed  for  delay  ;  and,  if  a  plea,  that 
it  is  true  in  point  of  fact. 


656  ADAMS's    DOCTRINE     OF     EQUITY. 

end,  and  he  may  be  either  dismissed  from  the  suit,  or  a 
decree  made  against  him,  according  as  the  nature  of  the 
disclaimed  interest  and  the  pLaintiff 's  security  require. 
It  seldom,  however,  happens  that  a  disclaimer  can  be 
put  in  alone;  for  as  it  is  possible  that  the  defendant  may 
have  had  an  interest  which  he  has  parted  with,  or  may 
have  set  up  an  unfounded  claim,  which  may  make  him 
liable  for  costs,  the  plaintiff  is  entitled  to  an  answer  on 
those  points.^  Of  course,  if  the  plaintiff  is  not  merely 
seeking  property  which  he  believes  the  defendant  to 
claim,  but  is  actually  charging  the  defendant  as  account- 
able for  a  wrong  committed,  a  disclaimer  cannot  apply.  (<i) 
2.  The  principle  of  a  defence  by  demurrer  is  that  on 
the  plaintiff's  own  showing,  his  claim  is  bad.^  It  is 
applicable  to  any  defence  which  can  be  made  out  from  the 
allegations  in  the  bill,  but  the  most  ordinary  grounds  of 
demurrer  are,  want  of  jurisdiction,  want  of  equity,  multi- 
fariousness, and  want  of  parties.  The  frame  of  a  demur- 
rer is  very  simple,  and,  after  the  formal  commencement, 
runs  thus:  "This  defendant  doth  demur  in  law  to  the 
said  bill,  and  for  cause  of  demurrer  showeth  that  it  ap- 

{d)  Mitf.  on  Pleading  318  ;  Perkin  v.  Stafford,  10  Sim.  562 ;  Graham  v. 
Coape,  3  M.  &  C.  638  ;  Glassington  v.  Thwaites,  2  lluss.  4'8. 

^  A  disclaimer  must  be  full  and  explicit  in  all  respects,  and  be  accompa- 
nied by  an  answer,  denying  the  facts  deemed  necessary  to  be  denied : 
Worthington  v.  Lee,  2  Bland  678.  The  defendant  must  renounce  all  claim 
to  the  subject  of  the  demand  made  by  the  plaintiff's  bill,  in  any  capacity, 
and  to  any  extent :  Bentley  w.  Cowman,  6  Gill  &  J.  152.  A  defendant 
cannot,  by  a  disclaimer,  deprive  the  plaintiff  of  the  right  to  require  a  full 
answer  from  him,  unless  it  is  evident  that  the  defendant  should  not,  after 
the  disclaimer,  be  continued  a  party  to  the  suit :  Ellsworth  v,  Curtis,  10 
Paige  105 ;  see  also,  Spofford  v.  Manning,  2  Edw.  Ch.  358. 

^  A  demurrer  does  not  lie  to  an  answer.  If  an  answer  is  irregular,  it 
may  be  treated  as  no  answer  and  taken  off  the  file  ;  if  it  is  merely  defect- 
ive, it  must  be  excepted  to :  Travers  v.  Ross,  1  McCart.  254 ;  Stone  v. 
Moore,  26  111.  165.  And  a  demurrer  does  not  lie  to  a  plea  or  to  a  replica- 
lion  ;  they  should  be  set  down  for  hearing  :  Beck  v.  Beck,  36  Miss.  72. 


OF    THE    DEFENCE.  657 

pears  by  the  said  bill  that,"  &c.,  stating  in  the  regular 
form  on  what  class  of  objection  the  defendant  relies,  or  if 
there  be  more  than  one  ground  of  objection,  stating  each 
ground  successively  with  the  prefatory  words,  ''  and  for 
further  cause  of  demurrer,  this  defendant  showeth,"  &c., 
and  concluding  with  the  words,  "wherefore  and  for  divers 
other  good  causes  of  demurrer  appearing  in  the  said  bill 
this  defendant  doth  demur  to  the  said  bill,  and  prays  the 
judgment  of  this  honorable  Court  whether  he  shall  be.com- 
pelled  to  make  any  other  answer  thereto ;  and  he  humbly 
prays  to  be  hence  dismissed,  with  his  reasonable  costs 
in  this  behalf  sustained."  The  formal  *state-  r*q 04^-1 
ment,  however,  of  the  causes  of  demurrer,  though 
usual,  is  not  absolutely  necessary;^  nor  does  the  statement 
of  one  cause  preclude  the  defendant  from  relying  in  argu- 
ment on  any  others  extending  to  the  same  part  of  the  bill; 
for  the  assertion  of  a  demurrer  is,  that  the  plaintiff  has 
not,  on  his  own  showing,  made  out  a  case,  and  if  that 
position  can  be  established  on  any  ground,  the  demurrer 
is  good.  In  such  a  case,  however,  the  defendant  will  not 
be  entitled  to  his  costs,  (e) 

The  form  of  demurrer  just  given  is  that  of  a  demurrer 
to  the  whole  bill.  But  although  a  demurrer  may  be  to 
the  whole  bill,  it  is  not  necessarily  of  that  extent;  nor, 
if  less  extensively  framed,  is  it  confined  to  any  particular 
portion  of  the  bill.  It  may  be  to  the  relief  sought,  it  may 
be  to  the  discovery,  or  it  may  be  to  both,  or  to  only  a  part 
of  one  or  of  both.^ 

(e)  Mitf.  217  ;  Welleslej  v.  Wellesley,  4  M,  &  C.  554  ;  1  Dan.  Ch.  P.  539- 
545. 

'  See  Nash  v.  Smith,  6  Conn.  421 ;  Vanhorn  v.  Duckworth,  7  Ired.  Eq 
261. 
'  Where  the  demarrer  does  not  go  to  the  whole  bill,  it  mast  clearly  ex- 
42 


658  ADAMS's    DOCTRINE     OF    EQUITY. 

If  it  be  to  the  whole  relief,  it  will  necessarily  extend 
to  the  discovery,  and  should  be  framed  accordingly ;  for, 
if  the  relief  cannot  be  given,  it  would  be  idle  to  require 
a  discovery;  and  if  the  discovery  be  required  for  any 
other  purpose,  it  should  be  sought  by  a  separate  and  in- 
dependent bill.(/y  If  the  demurrer  be  to  a  part  only  of 
the  relief,  it  will  not  necessarily  extend  to  the  discovery, 
because  discovery  may  be  necessary  for  obtaining  the 
rest  pf  the  prayer.  It  may  also  happen  that  the  demur- 
rer will  leave  the  relief  untouched,  and  will  extend  only 
to  the  discovery  or  part  of  the  discovery,  on  the  special 
ground  that  the  subject-matter  is  one  in  which  the  defend- 
ant is  not  obliged  to  answer,  e.  g.,  where  it  would  ex- 
pose him  to  a  penalty  or  forfeiture,  or  would  be  a  disclosure 
of  professional  confidence.^  But,  unless  such  special  ground 

(/)  Morris  v.  Morgan,  10  Sim.  341. 

press  the  particular  part  which  it  is  designed  to  'cover,  so  that  upon  a 
reference  of  the  answer  to  the  residue  of  the  bill  upon  exceptions  for  insuffi- 
ciency, the  master  may  be  able  to  ascertain  precisely  how  far  the  demurrer 
goes,  and  how  much  of  the  bill  remains  to  be  answered :  Jarvis  v.  Palmer, 
11  Paige  650 ;  Clancy  v.  Craine,  2  Dev.  Eq.  363 ;  Gray  v.  Kegan,  23  Miss. 
(1  Cushm.)  304;  Burch  v.  Coney,  14  Jur.  1009. 

A  defendant  cannot  answer  a  bill  and  demur  to  the  interrogatories : 
Kisor  V.  Stancifer,  Wright  323. 

^  See  Souza  v.  Belcher,  3  Edw.  Ch.  117;  Miller  w.  Ford,  Saxton  358; 
Welles  V.  River  Kaisin  R.  R.  Co.,  Walk.  Ch.  35  ;  Pool  v.  Lloyd,  5  Met.  525. 

"^  Livingston  v.  Harris,  3  Paige  528  ;  Brownell  v.  Curtis  et  al.,  10  Paige 
210. 

But  in  such  case  the  demurrer  should  be  confined  to  such  parts  of  the 
bill  as  tend  to  implicate  him  in  the  supposed  crime :  Burpee  v.  Smith, 
Walk.  Ch.  327. 

To  a  bill  for  a  discovery  against  a  surviving  partner,  and  for  an  account, 
a  demurrer  to  the  discovery,  alleging  that  it  might  subject  him  to  penalties 
under  the  laws  of  the  United  States,  is  bad ;  it  should  state  why  and  where- 
fore a  forfeiture  would  be  the  consequence  of  discovery  :  Sharp  v.  Sharp, 
3  Johns.  Ch.  407.  A  demurrer  to  a  bill  because  it  prayed  a  discovery  of 
that  which  would  subject  the  defendants  to  the  penalties  of  the  act  against 


OF    THE    DEFENCE.  659 

exist,  the  general  rule  is  that  the  defendant  cannot  admit 
the  right  to  relief,  and  at  the  same  time  demur  to  the  dis- 
covery by  which  the  relief  is  to  be  obtained. (^)  In  all 
cases  alike  the  rule  ^prevails,  that  the  extent  to  r*oo— i 
which  the  demurrer  is  meant  to  be  a  defence 
should  be  distinctly  pointed  out.^  And  if  the  protection 
claimed  be  too  extensive,  the  defence  will  fail.  For  a 
demurrer  cannot  be  good  in  part  and  bad  in  part ;  but  if 
it  be  general  to  the  whole  bill,  and  there  be  any  part,  either 
as  to  relief  or  discovery,  to  which  an  answer  is  requisite, 
the  demurrer  being  entire,  must  be  overruled.  (^^)^ 

ig)  1  Dan.  Ch.  P.  502.  {gg)  1  Dan.  Ch.  P.  538-540. 

buying  pretended  titles,  cannot  be  supported,  if  the  answer  need  not  neces- 
sarily show  a  scienter  of  the  vendor's  being  out  of  possession,  and  a  sub- 
sisting adverse  possession :  Le  Roy  v.  Servis,  1  Cai.  Cas.  Eq.  3  ;  s.  c.  1 
Johns.  Cas.  417.  See  also,  on  the  point,  Patterson  v.  Patterson,  1  Hayw. 
167  ;  Wolf  t'.  Wolf,  2  Har.  &  Gill  282  ;  Livingston  v.  Tompkins,  4  Johns. 
Ch.  415;  Northrop  v.  Hatch,  6  Conn.  361.  See,  in  addition,  supra.  Book 
I.,  chap,  i.,  on  Discovery. 

>  See  Atwill  c.  Ferrett,  2  Blatchf.  C.  C.  39. 

'  Livingston  r.'Story,  9  Pet.  632  ;  Brockway  r.  Copp,  3  Paige  539 ;  Le 
Roy  r.  Teeder,  1  Johns.  Cases  417  ;  Laight  v.  Morgan,  Id.  429  ;  Verplank 
V.  Gaines,  1  Johns.  Ch.  57  ;  Le  Fort  v.  DeLvfield,  3  Edw.  Ch.  32 ;  Thomp- 
son r.  Xewlin,  3  Ired.  Eq.  338 ;  Russell  v.  Lanier,  4  Hey.  289 ;  Kimberly 
V.  Sells,  3  Johns.  Ch.  467  ;  Livingston  v.  Livingston,  4  Id.  294 ;  Iligin- 
botham  v.  Burnet,  5  Id.  184  ;  Parsons  v.  Bowne,  7  Paige  354  ;  Castleman 
c.  Veitch,  3  Rand.  598  ;  Griggs  v.  Thompson,  1  Ga.  Decis.  146;  Hollsclaw 
V.  Johnson,  2  Id.  146  ;  Blount  f.  Garen,  3  Hey.  88  ;  Fancher  v.  Ingraham, 
6  Hlackf.  139  ;  Carter  v.  Longworth,  4  Ham.  384 ;  Western  Ins.  Co.  v. 
Eagle  Fire  Ins.  Co.,  1  Paige  284  ;  Parish  v.  Sloan,  3  Ired.  Eq.  607  ;  Harden 
V.  Miller,  Dudley  120  ;  Williams  v.  Hubbard,  Walk.  Ch.  28 ;  Thayer  v. 
Lane,  Harring.  Ch.  247 ;  Shed  v.  Garfield,  5  Verm.  39  ;  Clark  v.  Davis, 
Harring.  Ch.  227  ;  Bank  U.  S.  r.  Biddle,  2  Pars.  Eq.  32 ;  Gray  v.  Regan, 
23  Miss.  (1  Cushm.)  304  ;  Vanderveer  r.  Stryker,  4  Halst.  Ch.  175 ; 
Conant  r.  Warren,  6  Gray  562  ;  Atwill  v.  Ferrett,  2  Blatchf.  C.  C.  39.  See 
also,  Rowe  v.  Tonkin,  L.  R.  1  Eq.  9  ;  Banta  v.  Moore,  2  McCarter  (N.  J.) 
87  ;  Metier  v.  Metier,  4  Green  (N.  J.)  457  ;  Bonney  v.  Bonney,  29  Iowa, 
448  ;  Reilly  v.  Cavanaugh,  32  Ind.  214;  O'llarra  r.  Cox,  42  Miss.  496  ; 
see  also,  Hawkins  v.  Clermont,  15  Mich.  511 ;  State  v.  Young,  65  N.  C.  579. 


660  ADAMS's    DOCTRINE    OF    EQUITY. 

A  demurrer  might  also  have  been  overruled  under  the 
old  practice,  on  the  ground  that  it  did  not  cover  so  much 
of  the  bill  as  it  might  by  law  have  extended  to,  or  that  it 
was  coupled  with  an  answer  extending  to  some  part  of 
the  matter  which  .was  covered  by  the  demurrer ;  but  a 
different  rule  now  prevails,  (/i)^ 

The  principle  on  which  a  demurrer  in  equity  is  deijided 
is  the  same  which  applies  to  a  demurrer  at  law,  viz.,  that, 
assuming  the  plaintiff's  allegation  to  be  true,  he  has  not 
made  out  a  sufficient  case.  And  as  it  is  therefore  an 
invariable  rule  that  on  argument  of  a  demurrer,  all  allega- 
tions of  fact  contained  in  the  bill,  except  as  to  matters  of 
which  the  Court  takes  judicial  notice,  must  for  the  pur- 
poses of  the  argument  be  deemed  conclusive,^  a  demurrer 
introducing  contrary  or. additional  averments,  is  termed  a 

(A)  Orders  of  1841,  xxxvi.,  xxxvii. 

But  the  demurrer  will  not  be  overruled  if  the  bill  ia  multifarious.  See 
Dimmock  v.  Bixby,  20  Pick.  368.  When  a  demurrer  to  a  bill,  on  the 
ground  of  multifariousness,  is  sustained  as  to  part  of  the  bill,  all  that 
part  of  the  bill  not  objectionable  on  that  ground  remains  in  court,  and  the 
complainant  may  proceed  upon  it  as  if  no  demurrer  had  been  interposed  ; 
Durling  v.  Hammar,  20  N.  J.  Eq.  220. 

^  See  Spofford  v.  Manning,  6  Paige  383 ;  Kuypers  v.  Reformed  Dutch 
Church,  Id.  570  ;  Clark  v., Phelps,  6  Johns.  Ch.  214  ;  Chase's  Case,  1  Bland. 
Ch.  206 ;  McDermott  v.  Blois,  R.  M.  Charl.  281  ;  Robertson  v.  Bingley,  1 
.  McCord's  Ch.  352;  Jarvis  v.  Palmer,  11  Paige  650.  "Where  a  bill  is  de- 
murred to  in  part,  and  answered  in  part,  the  captions  should  be  distinct, 
and  specify  the  nature  of  the  pleadings ;  and  if  they  do  not  so  specify 
them,  they  will  be  had  in  form.  The  parts  demurred  to  should  be  pointed 
out,  for  if  left  indefinite,  the  answer  will  overrule  the  demurrer :  Bruen 
V.  Brucn,  4  Edw.  Ch.  640.  A  similar  change  to  that  stated  in  the  text, 
however,  has  been  introduced  into  the  practice  of  the  U.  S  Courts,  Rules 
in  Equity,  No.  xxxvi.;  vii. ;  and  in  Pennsylvania,  Rules  in  Eq.  No.  xxxv. 

'  But  facts  charged  on  the  complainant's  information  merely,  are  not  ad- 
mitted by  demurrer:  Williams  v.  Presbyt.  Soc,  1  Ohio  St.  N.  S.  478.  So 
where  a  fact  is  charged  as  a  conclusion  from  other  circumstances  stated  in 
the  bill,  but  which  do  not  in  fact  support  the  allegation :  Redmond  v. 
Dickerson,  1  Stockt.  507. 


OE    THE     DEFENCE.  661 

speaking  demurrer,  and  can  not  be  sustained.^  But  if 
the  allegations  are  inconsistent  or  uncertain,  or  if  any 
material  allegation  be  omitted,  the  construction  on  de- 
murrer will  be  against  the  bill.(?)^ 

The  course  of  procedure  on  demurrer  depends  upon  the 
plaintiff's  opinion  of  its  validity.  If  he  thinks  that,  as 
the  bill  stands,  the'- objection  is  good,  but  that  he  can 
remove  it  by  restating  his  case,  he  may  submit  to  the 
demurrer  and  amend  his  bill.  If  he  thinks  the  demurrer 
bad,  he  may  set  it  down  for  argument.  If  the  demurrer 
is  allowed  on  argument,  the  suit  is  at  an  end,  unless  the 
demurrer  is  confined  to  a  part  of  the  bill,  *or  r*ooc-i 
the  Court  give  permission  to  the  plaintiff  to 
amend.  If  it  is  overruled,  the  defendant  must  make  a 
fresh  defence  by  answer,  unless  he  obtain  permission  to 
avail  himself  of  a  plea.(^)^ 

It  is  not  compulsory  on  a  defendant  to  demur.  The 
principal  motives  for  doing  so  are,  to  avoid  a  prejudicial 
discovery,  and  to  prevent  unnecessary  expense.  And 
where  the  only  matter  in  dispute  is  a  point  of  law,  this 

(t)  Mortimer  r.  Frazer,  1  Dan.  Ch.  P.  500 ;  Taylor  v.  Barclay,  2  Sim.  213  ; 
Edsell  r.  Buchanan,  4  B.  C.  C.  254  5  Campbell  v.  Mackay,  1  M.  &  C.  603 ; 
F088  p.  Harbottle,  2  Hare  461,  503. 

(k)  1  Dan.  Ch.  P.  545-560 ;  Orders  of  1845,  xliv.-xlvii. 

*  A  demurrer  can  be  objected  to  as  a  speaking  demurrer,  only  when  it 
introduces  some  new  fact  or  averment  which  is  necessary  to  support  the 
demurrer,  and  which  does  not  distinctly  appear  on  the  face  of  the  bill : 
Brooks  p.  Gibbons,  4  Paige  374.  See  also  on  the  subject,  Tallmadge  v. 
Lovctt,  3  Edw.  .Ch.  563 ;  Saxon  v.  Barksdale,  4  Dessaus.  522 ;  Redd  v. 
Wood,  2  Ga.  Decis.  174  ;  Gray  r.  Regan,  23  Miss.'  304 ;  Black  p.  Shreeve, 
3  Halst.  Ch.  440. 

'  See  Simpson  p.  Fogo,  1  Johns.  &  H.  18. 

»  Story  Eq.  Plead.  ^  4G0 ;  Cole  Co.  r.  Anghey,  12  Mo.  132 ;  Henderson 
r.  Dennison,  1  Cart.  (Ind.)  152.  See,  on  this  subject.  Rules  Eq.  U.  S.  Cts., 
No.  xxxiv. ;  Penna.,  No.  xxxii.  As  to  amendment  of  a  demurrer,  see  Hol- 
liday  p.  Riordon,  12  Ga.  417. 


662  ADAMS's    DOCTRINE    OF    EQUITY. 

latter  object  may  often  be  attained  by  a  bill  intentionally 
so  framed,  as  to  be  open  to  demurrer  upon  that  point. 
If  these  motives  do  not  exist,  it  is  generally  an  inexpe- 
dient and  often  an  objectionable  course,  as  involving  a 
premature  discussion  of  the  case,  of  which  the  plaintiff 
will  probably  take  advantage.  If  fraud  or  misconduct 
be  alleged  in  the  bill,  it  affords  an  additional  reason 
against  demurring,  as  it  may  expose  the  defendant  to  un- 
favorable comments.^  And  even  when  he  wishes  to  avoid 
discovery,  he  may  now,  to  some  extent,  if  the  bill  be  de- 
murrable, protect  himself  by  answer.  (/) 

3.  The  principle  of  a  defence  by  plea  is,  that  the  de- 
fendant avers  some  one  matter  of  avoidance,  or  denies 
some  one  allegation  of  the  bill,  and  contends  that  assum- 
ing the  truth  of  all  the  allegations  in  the  bill,  or  of  all 
except  that  which  is  the  subject  of  denial,  there  is  suffi- 
cient to  defeat  the  plaintiff's  claim. ^  It  is  applicable,  like 
a  demurrer,  to  any  class  of  objections;  but  the  most  usual 
grounds  of  plea  are,  1.  Want  of  jurisdiction;  2.  Personal 
disability  in  the  plaintiff;  3.  A  decision  already  made  by 
the  Court  of  Chancery,  or  by  some  other  Court  of  com- 
petent jurisdiction,  or  a  suit  already  pending  in  a  Court 
of  equity  respecting  the  same  subject.     But  the  suit  must 

[l]  Mitf.  108;  Wigr.  on  Discovery,  2d  ed.,  p.  95;  38th  Order  of  August, 
1841. 

*  If  a  bill  contain  an  allegation  of  fraud,  it  is  a  general  rule  that  such 
allegation  must  be  answered,  and  a  general  demurrer  cannot  be  allowed  : 
Stovall  V.  N.  Bank  of  Miss.,  5  S.  &  M.  17  ;  Anderson  v.  Lewis,  Freem. 
206  ;  Rambo  v.  Rambo,  4  Dessaus.  251  ;  Niles  v.  Anderson,  5  How.  (Miss.) 
365  :  Carter  v.  Longworth,  4  Ham.  384 ;  Milleru.  Saunders,  17  Ga.  92.  See 
ante,  332,  note. 

'  The  ofiBce  of  a  plea  is  not  to  "deny  the  equity  (of  a  bill)  but  to  bring 
forward  some  fact  which,  if  true,  displaces  it :"  New  Brunswick  Co.  v. 
Muggeridge,  4  Drew.  696. 


OF    THE    DEFENCE.  663 

be  pending  in  a  Court  of  equity.  If  there  be  a  pending 
action  at  law,  the  proper  course  is  to  put  the  plaintiff  to 
his  election  by  motion,  which  Court  he  will  proceed 
in.(m)  4.  Want  of  equity,  where  the  equity  depends  on 
a  single  point. 

*Pleas  of  the  first  class,  or  those  in  which  new  r^ooY-i 
matter  is  alleged  in  avoidance,  are  termed  affirm- 
ative. They  do  not  require  any  special  comment,  and 
it  will  be  sufficient  to  mention  a  few  of  the  most  ordinary 
occurence,  viz.,  the  Statute  of  Limitations,  the  Statute  of 
Frauds,  a  release  under  seal,  an  account  settled  or  stated 
account,  an  award,  and  a  purchase  for  valuable  considera- 
tion without  notice,  (w)^ 

Pleas  of  the  second  class,  or  those  iii  which  an  allega- 
tion of  the  bill  is  denied,  are  termed  Negative  Pleas,  and 
are  applicable  when  the  plaintiff,  by  false  allegation  on 
one  point,  has  created  an  apparent  equity,  and  asks  dis- 
covery as  consequent  thereon,  e.  g.,  where  he   alleges 

(m)  Orders  of  May,  1845,  16,  20,  21,  15 ;  1  Dan.  Ch.  P.  599,  604,  79  1 
795. 

(n)  1  Dan.  Ch.  P.  606-643. 

^  A  plea  of  the  Statute  of  Limitations  is  bad,  unless  accompanied  by  an 
answer  supporting  it,  by  a  particular  and  precise  denial  of  all  the  facts  and 
circumstances  charged  in  the  bill,  and  which  in  equity  may  avoid  the 
statute:  Goodrich  v.  Pendleton,  3  Johns.  Ch.  384  ;  Bloodgood  v.  Kane,  8 
Cowen  360.  But  it  is  not  necessary  to  refer,  in  terms,  to  the  statute  which 
creates  the  bar :  Van  Hook  v.  Whitlock,  7  Paige  373.  See  Stearns  v.  Page, 
1  Story  204. 

A  plea  of  stated  account  must  aver  that  the  accounts  settled  all  dealings 
between  the  parties,  and  were  just,  and  fair,  and  due  ;  and  these  averments 
must  be  supported  by  an  answer  to  the  same  effect :  Schwarz  v.  Wendell, 
Harring.  Ch.  395.  If  the  complainant  does  not,  in  his  bill,  allege  that 
there  has  been  any  statement  of  accounts  between  the  parties,  the  defendant 
may  plead  an  account  stated,  without  annexing  a  copy  of  the  account  to 
his  plea  :  Weed  v.  Smull,  7  Paige  573.  See  Danels  v.  Taggart,  1  Gill  &,  J. 
311. 


664  ADAMS  S    DOCTRINE    OF    EQUITY. 

himself  to  be  a  partner  or  heir-at-law,  and  asks  for  an 
account  of  the  business,  or  particulars  of  the  estate.  In 
this  case  a  denial  by  answer  would  exclude  the  relief, 
but  it  would  not  protect  the  defendant  from  giving  the 
required  discovery,  because  on  a  principle  which  has  been 
already  explained,  a  defendant  who  answers  at  all  must 
answer  fully,  (o)  In  order,  therefore,  to  avoid  such  dis- 
covery, he  must  resort  to  a  negative  plea,  denying  the  al- 
legation of  partnership  or  heirship ;  and  until  the  validity 
of  his  plea  is  determined,  he  will  be  protected  from  giving 
discovery  consequent  on  the  allegation.^ 

It  is,  however,  very  seldom  that  a  pure  negative  plea 
can  be  made  available.  For  although  it  protects  against 
discovery  consequent  on  the  alleged  equity,  it  does  not 
protect  against  discovery  required  to  prove  it.  If,  there- 
fore, there  be  any  statements  in  the  bill  tending  to  prove 
the  disputed  allegation,  distinct  from  such  allegation  itself, 
the  discovery  asked  on  those  points  must  be  excepted 
from  the  plea,  and  must  be  given  by  an  answer  in  sup- 
port. Thus,  if  the  equity  alleged  were  that  a  testator 
was  indebted  to  the  plaintiff,  and  the  bill  asked  discovery 
consequent  on  the  debt,  e.  g.,  payment  of  interest,  a  plea 
r*SS81  ^^  "^^  debt"  would  cover  *all  the  discovery  and 
relief  sought,  including  the  allegation  of  debt, 
but  excepting  the  discovery  in  evidence  of  the  debt.(jo)^ 

The  same  principle  has  been  held  applicable  where  the 
plea  was  negative  in  substance  though  not  in  terms  ;  e.  g., 

(o)  Supra,  Discovery. 

[p)  Thring  v.  Edgar,  2  S.  &  S.  274;  Denys  v.  Locock,  3  M.  &  C.  205. 


^  A  plea  simply  denying  a  fact  alleged  in  the  bill,  as  e.  g.,  a  partnership 
is  bad :  Innes  v.  Evans,  3  Edw.  Ch.  454  ;  Bailey  v.  Le  Roy,  2  Edw.  Ch. 
514  ;  Black  v.  Black,  15  Ga.  445. 

"  See  Everitt  v.  Watts,  3.  Edw.  Ch.  486. 


OF    THE    DEFENCE.  665 

where  the  bill  alleged  that  a  deceased  person  had  left  no 
heirs  ex  parte  paternd,  and  that  the  plaintiff  was  heir  ex 
parte  maternd,  and  alleged  further,  that  the  defendants  by 
correspondence  had  admitted  the  plaintiff's  title,  a  plea 
that  a  specified  person  was  heir  ex  parte  paterna,  was  over- 
ruled, because  it  was  not  coupled  with  an  answer  as  to 
the  alleged  correspondence.  ($') 

There  is  a  third  class  of  plea,  which  may  be  termed 
the  anomalous  plea,  which  is  applicable  when  the  plaintiff 
has  anticipated  a  legitimate  plea,  and  has  charged  an 
equity  in  avoidance  of  it ;  e.  g.,  when  having  stated  his 
original  equity,  he  states  that  a  subsequent  release  was 
given,  or  is  pretended  by  the  defendant  to  have  been 
given,  and  charges  fraud  in  obtaining  such  release.  In 
this  case  the  release  or  other  original  defence  may  be 
pleaded  with  averments  denying  the  fraud,  or  other  equity 
charged  in  avoidance.  The  term  anomalous  is  applicable 
to  such  plea,  because  it  does  not  tender  an  independent 
issue,  but  sets  up  anew  the  impeached  defence,  with 
averments  in  denial  of  the  impeaching  equity. 

It  is  obvious  from  the  nature  of  the  anomalous  plea, 
that  it  is  only  good  against  the  original  equity,  and  is  in- 
effectual against  the  equity  charged  in  avoidance ;  and, 
therefore,  the  allegations  which  constitute  that  equity 
must  not  only  be  denied  by  averments  in  the  plea,  in 
order  to  render  the  defence  complete,  l^ut  must  in  respect 
of  the  plaintiff's  right  of  discovery  be  the  subject  of  a 
full  answer  in  support,  (r)^ 

(9)  Wig.  on  Disc.  ss.  115,  120;  Emerson  e.  Harland,  3  Sim.  490;  8  Bli. 
62 ;  Clayton  v.  Winchelsea,  3  Y.  &  C.  426. 
(r)  Foley  v.  Hill,  3  M.   &  C.  475. 

^  A  defendant  is  bound  to  support  his  plea  by  an  answer,  as  to  those 
circumstances  stated  in  the  bill,  which,  if  admitted  to  be  true,  would  be 


666  ADAMS's    DOCTRINE     OF    EQUITY. 

Where  an  answer  in  support  is  not  required,  a  plea  to 
all  *the  relief  is  a  bar  to  all  the  discovery ;  for 
the  discovery  is  only  material  in  order  to  obtain 
the  relief  (s)  It  has  been  doubted  whether  this  rule  ap- 
plies, where  the  relief  is  at  law,  i.  e.,  whether  the  defend- 
ant to  a  bill  seeking  discovery  in  aid  of  an  action  at  law, 
can  plead  his  legal  defence  in  bar  to  the  discovery,  so  as 
to  preclude  the  plaintiff  from  proving  thereby  his  case  at 
law,  and  to  transfer  the  trial  of  the  legal  defence  into  a 
Court  of  equity.  There  may,  perhaps,  be  inconvenience 
in  this  course,  but  the  principle  on  which  the  rule  is  based 
seems  to  include  both  cases  alike,  and  to  render  the  plea 
a  protection  against  all  discovery,  except  such  as  would 
disprove  or  avoid  it.(;^)^ 

If  an  answer  in  support  is  requisite,  the  part  to  which 
the  plea  applies  must  be  distinctly  shown,  for  the  answer 

(s)  Sutton  V.  Scarborough,  9  Ves.  71. 

{t)  Hindman  v.  Taylor,  2  B.  C.  C.  7 ;  Wigr.  on  Discovery,  s.  66  ;  Hare 
on  Discovery,  p.  47-62. 

evidence  to  counter-prove  the  plea :  Bogardus  v.  Trinity  Church,  4  Paige 
178  ;  Tompkins  v.  Ward,  4  Sandf.  Ch.  594 ;  Cox  v.  Mayor  of  Griffin,  17 
Ga.  249  ;  or  would  tend  in  any  way  to  discredit  it :  Hunt  v.  Penrice,  18 
Jur,  4.  And  the  averments  are  as  necessary  as  the  answer ;  for  where  a 
bill  charged  misrepresentation,  coercion,  and  fraud,  in  procuring  aVelease 
of  a  debt,  and  the  defendant  put  in  a  plea  and  answer,  and  in  his  plea  in- 
sisted on  the  release  in  bar,  without  noticing  the  allegation  of  fraud, 
though  in  the  answer  it  was  fully  met  and  denied,  the  plea  was  held  bad  : 
Allen  V.  Randolph,  4  Johns.  Ch.  693.  See  also  on  this  point,  Fish  v. 
Miller,  5  Paige  26  ;  Bolton  v.  Gardner,  3  Id.  273  ;  Bellows  v.  Stone,  8  N. 
H.  280;  French  v.  Shottwell,  5  Johns.  Ch.  555;  Ferguson  v.  G'Harra,  1 
Pqters  C.-C.  493.  See  as  to  rules  in  the  United  States  and  Pennsylvania, 
ante,  332,  note. 

^  See  Lane  v.  Stevens,  3  Edw.  Ch.  480  ;  9  Paige  622  ;  in  which  it  was 
decided,  that  a  defendant  in  a  suit  at  law  can  be  compelled,  through  a  dis- 
covery bill,  to  answer,  even  though  the  discovery  may  be  fatal  to  the  de- 
fence he  sets  up. 


OF    THE    DEFENCE.  667 

is  necessary  in  determining  the  validity  of  the  plea.^  If, 
therefore,  the  plea  cover  too  much,  and  so  prevent  an 
answer  on  any  material  point,  or  if  the  answer,  though 
in  terms  applying  to  all  the  requisite  discovery,  be  sub- 
stantially insufficient,  the  plea  will  be  disallowed,  (w) 
For  on  argument  of  the  plea,  every  fact  stated  in  the  bill 
which  ought  to  be,  but  is  not  denied  by  the  answer,  will 
be  taken  to  be  true  as  against  the  plea.  And  by  the 
old  practice,  if  the  plea  covered  too  little,  e.  g.,  if  it  did 
not  cover  so  much  of  the  bill  as  it  might  by  law  have  ex- 
tended to ;  or  if  the  answer  covered  too  much,  and  extend- 
ed to  some  part  overruled  by  the  plea,  in  both  cases  the 
plea  was  bad.^  If  an  answer  is  not  required  in  support, 
the  plea  is  not  vitiated  by  applying  it  to  too  large  a  por- 
tion of  the  bill,  but  may  be  allowed  as  to  that  part  only 
to  which  it  would  properly  extend.     And  in  this  respect 

iu)  1  Dan.  Ch.  P.  591  ;  Foley  v.  Hill,  3  M.  &  C.  475 ;  Harris  v.  Harris,  3 
Hare  450. 

^  See  Jarvis  v.  Palmer,  11  Paige  650. 

*  An  answer  can  overrule  a  plea  only  where  it  relates  to  matters  which 
the  defendant  by  his  plea  declines  to  answer  :  Bogardus  v.  Trinity  Church, 
4  Paige  178;  Souzer  v.  De  Meyer,  2  Id.  574;  Ferguson  v.  O'Harra,  1 
Pet.  C.  C.  493. 

A  general  answer,  and  not  merely  in  support  of  the  plea,  overrules  the 
plea :  Taylor  v.  Luther,  2  Sumner  228 ;  Clark  v.  Saginaw  Bank,  Harring. 
Ch.  240,  So,  an  answer  containing  more  than  is  strictly  applicable  to  the 
support  of  the  plea :  Stearns  v.  Page,  1  Story  204. 

If  an  answer  commences  as  an  answer  to  the  whole  bill,  it  overrules  a 
plea  or  demurrer  to  any  particular  part  of  the  bill,  although  such  part  is 
not  in  fact  answered  :  Leacraft  r.  Demprey,  4  Paige  124.  Now,  however, 
by  Equity  Rule  xxxvii.  of  the  United  States  Courts,  and  Equity  Rule 
XXXV.,  in  Pennsylvania,  it  is  provided  that  no  demurrer  or  plea  shall  be 
held  bad  and  overruled  on  argument,  only  because  the  answer  of  the  de- 
fendant may  extend  to  some  part  of  the  same  matter,  as  may  be  covered 
by  such  demurrer  or  plea. 


668  ADAMs'S    DOCTRINE    OF    EQUITY. 

it  differs  from  a  demurrer,  which  can  not,  as  we  have  al- 
ready seen,  be  good  in  part  and  bad  in  part.(z;)^ 
P^o^A-i  *The  form  of  a  pure  plea,  whether  affirmative 
or  negative,  is  that  "  This  defendant  doth  plead 
to  the  said  bill,  and  for  plea  saith,"  &c.,  stating  the  matter 
of  avoidance  or  denial  on  which  he  relies ;  and  then  con- 
cluding, "All  which  this  defendant  doth  aver  to  be  the 
truth,  and  pleads  the  same  to  the  said  bill." 

The  form  of  a  plea  supported  by  an  answer,  whether 
negative  or  anomalous,  is  that  "  This  defendant  as  to  all 
the  discovery  and  relief,  other  than  and  except  so  much 
of  the  bill  as  seeks  a  discovery,  whether,"  &c.  (setting  out 
at  length  the  excepted  interrogatories),  "  doth  plead 
thereto,  and  for  plea  saith,  &c.,  all  which  this  defendant 
doth  aver  to  be  the  truth,  and  doth  plead  the  same  to  the 
said  bill,  except  such  parts  thereof  as  aforesaid ;  and  this 
defendant,  not  waiving  his  said  plea,  but  relying  thereon, 
doth  for  answer  to  so  much  of  the  said  complainant's  said 

(»)  Mitf.  295. 

^  A  plea  may  be  good  in  part  or  bad  in  part :  French  v.  Shotwell,  20 
Johns.  668  ;  Kirkpatrick  v.  AVhite,  4  Wash.  C.  C.  595. 

Where  a  plea  is  overruled,  the  Court  may  either  order  it  to  stand  for  an 
answer,  with  liberty  to  the  plaintiff  to  except,  or  it  may  be  overruled  alto- 
gether, and  the  defendant  ordered  to  answer :  Goodrich  v.  Pendleton,  3 
Johns.  Ch.  394.  The  Court  may  permit  a  plea  to  stand  for  an  answer,  if 
it  contains  matter  which,  if  put  in  the  form  of  an  answer,  would  have  con- 
stituted a  valid  defence  to  some  material  part  of  the  matter  to  which  it  is 
pleaded  in  bar  :  Orcutt  ».  Orms,  5  Paige  459.  By  allowing  a  plea  to  stand 
for  an  answer,  the  Court  decides  that  it  contains  matters  of  defence  ;  but 
that  it  is  not  a  full  defence  to  all  which  it  professes  to  cover,  or  that  it  is 
informally  pleaded  ;  or  that  the  defence  cannot  be  properly  made  by  way  of 
plea ;  or  that  the  plea  is  not  properly  supported  by  answer :  Id.  See  also 
Souzer  v.  De  Meyer,  2  Paige  574 ;  Leacroft  u.  Demprey,  4  Id.  124. 
When  a  plea  is  adjudged  a  good  defence  in  part,  and  ordered  to  stand  for 
an  answer,  it  is  a  sufficient  answer  to  so  much  of  the  bill  as  it  covers,  unless 
by  the  order  the  complainant  is  given  leave  to  except:  Beall  v.  Blake,  10 
Ga.  449. 


OF    THE    DEFENCE.  669 

bill  as  this  defendant  hath  not  pleaded  to,  answer  and 
say,"  &c.,  following  the  ordinary  form  of  answers.  (e<;) 

The  rules  of  pleading  applicable  to  a  plea  are,  that  it 
must  raise  a  single  issue,  and  that  its  averments  must 
have  the  same  certainty  as  those  of  a  plea  at  law. 

It  must  be  confined  to  a  single  issue.^  It  is  not  neces- 
sary that  it  should  consist  of  a  single  fact ;  for  the  defence 
offered  by  way  of  plea  may  in  equity,  as  at  law,  consist 
of  many  facts,  provided  they  all  tend  to  one  point  con- 
stituting the  defence.  But  it  cannot  include  several  de- 
fences, or  as  it  is  technically  termed,  a  defendant  cannot, 
without  special  leave,  put  in  a  double  plea  to  the  whole 
bill,  or  to  the  same  part  of  it.  He  cannot,  for  example, 
plead  to  a  charge  of  infringing  a  patent,  first,  that  it  is  not 
a  new  invention  ;  and  secondly,  that  it  is  not  a  useful  one  ; 
because  either  of  these  facts,  if  true,  would  be  a  separate 
defence.  (2:)  Of  course  this  rule  does  not  apply  where  the 
bill  makes  a  double  claim,  so  as  to  prohibit  different  pleas 
to  the  different  *parts  of  such  a  bill ;  for  such  pleas  r^o^n  -i 
are  not,  in  fact,  a  double  defence  to  the  same 
claim,  but  distinct  defences  to  distinct  claims. 

Its  averments  must  have  the  same  certainty  as  those 

(to)  Denys  v.  Locock,  3  M.  &  C.  205. 

(a:)  W^hitbread  v.  Brockhurst,  1  B,  C.  C.  404 ;  Kay  ».  Marshall,  1  Keen 
190;  Strickland  v.  Strickland,  12  Sim.  253. 

^  Saltus  V.  Tobias,  7  Johns.  Ch.  214 ;  Van  Hook  v.  Whitlock,  3  Paige 
409 ;  Goodrich  r.  Pendleton,  3  Johns.  Ch.  386 ;  Driver  r.  Driver,  6  Ind. 
286. 

The  cases  in  which  the  court  allows  the  defendant  to  make  several  de- 
fences by  pleas  to  the  bill,  are  those  in  which  the  making  the  defences  by 
answer  would  render  it  necessary  for  the  defendant  to  set  out  long  ac- 
counts, or  where  the  discovery  sought  by  the  bill  would  be  productivB  of 
injury  to  the  defendant  in  his  business,  or  otherwise  :  Didier  v.  Davison,  10 
Paige  615;  see  Moreton  v.  Harrison,  1  Bland  Ch.  491 ;  liidgley  v.  War- 
field.  1  Id.  494,  in  notis. 


670  ADAMS's    DOCTRINE    OF    EQUITY. 

of  a  plea  at  law.  It  has  been  already  stated,  that  in 
the  bill  and  answer  in  equity,  there  is  not  required  the 
same  certainty  of  averment  as  at  law ;  parti}""  because  it 
is  not  necessary  to  reduce  the  litigation  to  a  single  issue, 
and  partly  because  all  issues,  whether  of  law  or  fact,  are 
decided  or  adjusted  for  decision  by  the  Court.  It  is  not, 
therefore,  essential  that  they  should  be  kept  strictly  dis- 
tinct. On  a  plea,  however,  there  can  be  but  one  issue 
raised ;  and  we  shall  presently  see  that  the  issues  of  law 
and  fact,  though  both  decided  by  the  Court,  are  not  de- 
cided at  the  same  time,  but  the  law  is  first  settled  on  tl^e 
argument,  and  the  fact  afterwards  at  the  hearing  of  the 
plea.  For  this  reason,  the  laxity  of  averment  in  a  bill 
and  answer  is  not  permitted  in  a  plea ;  but  it  is  required 
that  every  essential  fact  be  expressly*  averred,  so  that  if 
the  validity  of  the  plea  be  questioned,  it  may  be  clear  at 
the  argument  whether  the  alleged  facts  constitute  a  de- 
fence ;  and  if  its  truth  be  impugned,  no  doubt  may  exist 
as  to  the  specific  facts  to  which  the  evidence  must  be 
directed. 

It  is  also  necessary  to  the  validity  of  a  plea,  that  it  be 
verified  by  the  defendant's  oath.^  This  rule  is  in  accord- 
ance with  the  general  principle  of  equity  that  no  man 
shall  set  up  a  defence  which  he  does  not  believe  to  be 
true.  The  exceptions  to  it  are  where  the  matter  pleaded 
is  provable,  not  by  evidence  of  witnesses,  but  by  matter 
of  record,  i.  e.,  by  the  enrolled  proceedings  of  a  Court  of 
record.  In  this  case,  the  mere  inspection  of  the  record 
Ls  conclusive,  and  no  oath  is  required.  (^) 

The  course  of  procedure  on  a  plea  will  depend  on  the 

iy)  1  Dan.  Ch.  P.  651-656. 

'  Wild  r.  Gladstone,  15  Jur.  713.     It  seems  the  proper  course  is  to  move 
to  take  the  plea  off  file,  if  it  be  unsworn  :  Ibid. 


OF    THE    DEFENCE.  671 

view  taken  by  the  plaintiff  as  to  the  siiflBciency  in  law, 
or  the  truth  in  fact,  of  the  defence.  If  he  thinks  the  plea 
*valid,  but  that  he  can  meet  it  by  amendment,  r^Qio-i 
he  may  do  so.  If  he  thinks  it  invalid,  he  may 
set  it  down  for  argument.  If  he  thinks  it  untrue,  he 
may  file  a  replication,  and  go  to  a  hearing  on  the  issue  of 
its  truth. ^  If  the  plea  be  overruled  on  argument,  the  de- 
fendant must  answer.  Or  the  Court  may  pursue  an  in- 
termediate course  by  reserving  the  benefit  of  it  till  the 
hearing,  qr  by  directing  it  to  stand  for  an  answer  with 
liberty  for  the  plaintiff  to  except  to  its  sufficiency.^  If  it 
is  allowed  on  argument,  its  validity  is  established,  but  the 
plaintii^  may  still  file  a  replication,  and  go  to  a  hearing 
on  the  question  of  its  truth.  He  may  sometimes,  too, 
obtain  permission  to  amend  his  bill,  but  this  is  not  a 
matter  of  course  after  the  allowance  of  a  plea,  and  will 
only  be  granted  on  a  special  application.  If  the  plea  be 
replied  to,  either  originally  or  after  its  allowance  on  argu- 
ment, the  cause  will  be  brought  to  a  hearing  on  the  single 
question  of  its  truth.  If  it  is  sustained  by  the  evidence, 
there  will  be  a  decree  for  the  defendant.  If  it  is  dis- 
proved, he  can  set  up  no  further  defence,  but  a  decree 
will  be  made  against  him.(^) 

A  plea,  like  a  demurrer,  is  not  compulsory  on  the  de- 
fendant. And  if  he  has  no  strong  motive  for  resisting 
discovery,  an  answer  is  generally  the  safer  defence. 

4.  *  The  defence  by  answer  is  the  most  usual,  and 
generally  the  most  advisable  course.  It  puts .  on  the 
record  the  whole  case  of  the  defendant,  enabling  him  to 

(z)  1  Dan.  Ch.  P.  656-668,  1845-48-50. 

^  See,  as  to  the  practice  in  this  point,  Wilkes  v.  Henry,  4  Edw.  Ch.  672. 
'  See  cases  cited,  supra,  note,  p.  339. 


672  ADAMS's    DOCTRINE    OF    EQUITY. 

use  all  or  any  of  his  grounds  of  defence,  subject  only  to 
the  necessity  of  verifying  them  on  oath  ;^  and  an  objec- 
tion which  might  have  been  made  by  demurrer  or  plea, 
will,  in  most  cases,  be  equally  a  bar  to  relief  when  insisted 
on  by  answer,  although  it  will  not,  as  we  have  already 
seen,  excuse  the  defendant  from  giving  the  discovery  re- 
quired by  the  bill. 

In  the  case  of  an  objection  for  want  of  parties,  not 
taken  by  demurrer  or  plea,  the  rule  formerly  was  that, 
whether  pointed  out  in  the  answer  or  not,  such,  objection 
P^qj^o-i  *was  valid  at  the  hearing,  but  that  the  case 
might  stand  over  for  the  plaintiff  to  amend,  sub- 
ject, however,  if  notice  had  been  given  by  the  answer,  to 
payment  of  the  defendant's  costs  of  the  day.  This  rule 
has  been  recently  modified  in  two  respects;  viz.,  1. 
Where  an  objection  for  want  of  parties  is  suggested  in 
the  answer,  by  enabling  the  plaintiff  to  set  it  down  for 
immediate  argument,  and  if  he  neglect  to  do  so  by  debar- 
ring him,  at  the  discretion  of  the  Court,  from  liberty  to 
amend  at  the  hearing ;  and,  2.  When  the  objection  is 
not  so  suggested,  by  enabling  the  Court  to  reject  it  at  the 
hearing,  and  to  make  a  decree  saving  the  rights  of  the 
absent  parties.  («) 

The  answer  sustains  a  double  character.  It  is  first  a 
narrative  of  the  defendant's  case,  and  secondly  a  discovery 
in  aid  of  the  plaintiff.  It  commences,  "This  defend- 
ant, reserving  to  himself  all  benefit  of  exception  to  the 
said  complainant's  said  bill  of  complaint,  for  answer 
thereto  saith."^     It  then  goes  on  to  answer  the  plaintiff's 

(a)  39th  and  40th  Orders  of  August,  1841.    [And  see  Rules  in  Eq.  U.  S. 
Courts,  No.  Hi.,  liii. ;  Penn.  xxv.,  xxvii.] 

1  See  Daniels'  Ch.  Prac.  748. 

■■'  The  general  reservation  of  exceptions  in  the  commencement  of  an 


OF    THE    DEFENCE,  i  673 

interrogatories,  and  to  introduce  such  new  matter  as  may 
be  required;  and  concludes  with  what  is  termed  the 
general  traverse  or  denial  of  all  matters  in  the  bill.  This 
is  usually  expressed  in  drafts  by  the  words,  "Without 
this,  that,"  &c.,  and  is  filled  up  in  the  engrossment. 

It  is  said  to  have  obtained,  when  the  practice  was  for 
the  defendant  to  set  forth  his  case,  without  answering, 
every  clause  in  the  bill.  And,  though  now  unnecessary, 
it  is  still  continued  in  practice.  (^) 

The  averments  of  an  answer,  so  far  as  it  is  a  narrative 
of  the  defendant's  case,  are  governed  by  the  same  rules 
as  those  of  a  bill;  viz.,  they  must  state  the  defence  with 
reasonable  certainty  and  without  scandal  or  imper- 
tinence.^ 

In  so  far  as  the  answer  consists  of  discovery,  it  is  regu- 
lated by  the  principles  already  discussed  under  that  head 
of  jurisdiction;  viz.,  no  defendant  need  discover  matters 
tending  to  criminate  himself,  or  to  expose  him  to  penalty 
or  forfeiture;  no  defendant  need  discover  legal  advice 
*which  has  been  given  him  by  his  professional  r*o^j^-i 
advisers,  or  statements  of  facts  which  have  passed 

(6)  Mitf.  on  Plead.  314. 

answer  cannot  be  relied  on  as  raising  exceptions  to  the  jurisdicti^p  ;  neither 
can  it  perform  the  oflSce  of  a  general  demurrer,  or  of  exceptions  to  the  aver- 
ments of  the  hill :  OS'eill  v.  Cole,  4  Md.  107  ;  Oldham  v.  Trimble,  15  Mo. 
225. 

Where  an  answer  is  regularly  entitled  in  the  cause,  the  absence  of  the 
preliminary  words,  "  to  the  said  complainant's  bill  of  complaint,"  is  not 
objectionable :  Rabbett  v.  Squire,  1  Eq.  Hep.  56. 

^  Repetition  of  a  material  statement  in  an  answer  to  an  amended  bill  is 
impertinent.  It  is  no  defence  to  an  application  to  strike  out  impertinent 
matter,  that  it  will  make  the  pleading  inconsistent,  unreasoning,  and  in- 
congruous :  AUfrey  v.  AUfrey,  14  Beav.  235  ;  15  Jur.  831 ;  Gier  w.  Gregg, 
4  McLean  202.  Where  parts  of  an  answer  are  prima  facie  scandalous, 
the  court  will  order  a  reference  to  a  master  without  examining  whether 
they  are  or  are  not  responsive :  Matbewson  v.  Mathewson,  1  K.  I.  397. 
43 


674  ADAMS's    DOCTRINE     OF    EQUITY. 

between  himself  and  them  in  reference  to  the  dispute 
in  litigation,  and  official  persons  must  not  disclose  any 
matter  of  state,  the  publication  of  which  may  be  prejudi- 
cial to  the  community;  but  subject  to  these  restrictions, 
every  competent  defendant  must  answer  on  oath  as  to  all 
facts  material  to  the  plaintiff's  case.  He  must  answer 
fully,  if  he  answer  at  all ;  i.  e.,  he  must  either  protect 
himself  by  demurrer  or  plea,  or  must  answer  every  legiti- 
mate interrogatory,  and  he  must  answer  distinctly,  com- 
pletely, without  needless  prolixity,  and  to  the  best  of  his 
information  and  belief,  (c)^    He  is  not,  however,  bound  to 

(c)  Supra,  Discovery. 

1  See  Story's  Equity  Pldg.  U  846-848  ;  Brooks  v.  Byam,  1  Story  296 
Taylor  v.  Luther,  1  Sumner  228  ;  Bradford  v.  Geiss,  4  Wash.  C.  C.  R.  513 
Devereaux  v.  Cooper,  11  Verm.  103 ;  Woods  v.  Morrell,  1  Johns.  Ch.  103 
Robertson  v.  Bingley,  1  McCord's  Ch.  333 ;  Hagthorp  v.  Hook,  1  Gill  &  J 
270;  Bailey  v.  Wilson,  1  Dev.  &  Batt.  Eq.  182  ;  Carneal  v.  Wilson,  3  Litt 
80 ;  Dinsmoor  v.  Hazleton,  2  Foster  535  ;  Warren  v.  Warren,  30  Verm 
530;  McKim  v.  White  Hall  Co.,  2  Md.  Ch.  510-;  Wootten  v.  Burch,  Id 
190 ;  Kinnaman  v.  Henry,  2  Halst.  Ch.  90.  It  is  a  general  rule  that  a  de- 
fendant cannot,  by  answer,  excuse  himself  from  answering  :  Bank  of  Utica 
».  Messereau,  7  Paige  517. 

On  the  other  hand,  a  defendant  may  answer  in  part,  and  by  his  answer 
state  reasons  why  he  should  not  be  compelled  to  make  further  answer : 
Hunt  V.  Gookin,  6  Verm.  426.  That  an  answer  is  insufficient  in  some  par- 
ticulars, dges  not  destroy  its  effect  upon  the  points  upon  which  it  answers 
directly  :  Whitney  v.  Bobbins,  2  Green  (N.  J.)  360. 

A  defendant  need  not  asswer  any  allegations  in  the  bill  which  are  not 
material  to  be  answered :  Utica  Insurance  Co.  v.  Lynch,  3  Paige  210 ; 
Butler  V.  Catling,  1  Root  310 ;  West  v.  Williams,  1  Md.  Ch.  358.  Yet  in 
such  case  it  should  appear  that  an  answer  would,  in  no  aspect  of  the  com- 
plaina:nt's  case  as  made  by  the  bill,  be  of  service  to  him :  Gilkey  v.  Paige, 
Walker's  Ch.  520.  Nor  need  a  defendant  answer  any  interrogatory  not 
founded  on  some  allegation  in  the  bill:  Miller  v.  Saunders,  17  Ga.  92;  nor 
respond  to  an  allegation  as  to  his  own  insolvency :  Mayer  v.  Galluchat,  6 
Rich.  Eq.  (S.  C.)  1.  Where  a  defendant  denies  all  knowledge  of  a  fact 
charged  in  the  bill,  it  is  not  necessary  for  him  to  state  his  belief  in  relation 
to  it :  Morris  v.  Parker,  3  Johns.  Ch.  297.  Where  a  fact  is  charged  in  a 
bill,  which  is  within  the  defendant's  knowledge  as  an  act  done  by  him,  he 


OF    THE    DEFENCE.  675 

answer  as  to  conclusions  of  law,  nor  as  to  conclusions  of  fact, 
when  the  evidence  only  is  within  his  knowledge,  and  not 
the  fact  which  it  tends  to  prove.  And  in  such  cases  it  is 
generally  advisable  to  detail  exactly  the  facts  or  evidence, 

must  answer  positively,  and  not  according  to  his  remembrance  and  belief; 
but  where  the  fact  charged  did  not  occur  within  six  years,  it  is  an  excep- 
tion to  the  rule  :  Carey  v.  Jones,  8  Ga.  516.  A  defendant  cannot  be  com- 
pelled to  answer  interrogatories  based  upon  a  hypothetical  statement  in 
the  bill :  Grim  v.  Wheeler,  3  Edw.  Ch.  334.  Nor  a  mere  recital  in  the  bill : 
Mechanics'  Bank  r.  Levy,  3  Paige  606.  Nor  a  mere  arithmetical  proposi- 
tion :  Mclntyre  v.  Union  College,  6  Id.  239.  And  where  there  is  a  general 
denial  in  the  defendant's  answer,  which  is  clear  and  distinct,  any  am- 
biguity in  a  particular  part  will  not  vitiate  or  destroy  other  parts.  The 
whole  answer  is  to  be  taken  together.  See  Smith  r.  Fisher,  2  Dessaus. 
275 ;  and,  in  addition,  upon  the  requisites  of  the  answer,  note,  page  307, 
ante. 

By  the  Equity  Rules  of  the  U.  S.  Courts,  No.  xxxix.,  and  of  Penna.,  No. 
xxxviii.,  it  is  provided,  that  the  rule  that  if  a  defendant  submits  to  answer, 
he  shall  answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer  apply 
in  cases  where  he  might,  by  plea,  protect  himself  from  such  answer  and 
discovery.  And  it  is  also  provided,  that  the  defendant  shall  be  entitled  in 
all  cases,  by  answer,  to  insist  upon  all  matters  of  defence  (not  being  mat- 
ters of  abatement,  or  to  the  character  of  the  parties,  or  of  matters  of  form) 
in  bar  of,  or  to  the  merits  of  the  bill  of  which  he  may  be  entitled  to  avail 
himself  by  a  plea  in  bar ;  and  in  such  answer  he  shall  not  be. compellable 
to  answer  any  other  matters  than  he  would  be  compellable  to  answer  and 
discover  upon  filing  a  plea  in  bar,  and  an  answer  in  support  of  such  plea, 
touching  the  matters  set  forth  in  the  bill  to  avoid  or  repel  the  bar  or  de- 
fence. Thus,  for  example,  a  bondjide  purchaser,  for  a  valuable  considera- 
tion, without  notice,  may  set  up  the  defence  by  way  of  answer  instead  of 
plea,  and  will  be  entitled  to  the  same  protection,  and  will  not  be  compella- 
ble to  make  any  further  answer  or  discovery  of  his  title  than  he  would  be 
in  any  answer  in  support  of  such  a  plea. 

A  bill  wanting  in  equity  can  derive  no  aid  from  the  answer,  and  is  liable 
to  be  dismissed  on  motion,  though  the  answer  disclose  a  case  that  would 
entitle  the  complainant  to  relief:  Lockard  v.  Lockard,  16  Ala.  423. 

The  defendant  may  state  in  his  answer  and  take  issue  on  matters  which 
have  happened  after  bill  filed,  but  the  Court  will  not  deal  with  the  subject 
of  the  suits  by  interlocutory  order,  which  occur  after  the  answer  has  been 
filed,  and  are  not  brought  forward  by  amendment,  by  supplemental  bill,  or 
by  supplemental  answer :  Stamps  r.  Birmingham,  Jbc,  R.  R.,  7  Hare  258  ; 
2  Ph.  673. 


676  ADAMS's    DOCTRINE    OF    EQUITY. 

and  to  submit  to  the  Court  whether  they  warrant  the 
plaintiff's  conclusion,  and  then  to  conclude  with  a  special 
traverse  in  the  words  of  the  interrogatory  that  "  save  as 
aforesaid  the  defendant  cannot  state  as  to  his  belief  or 
otherwise  whether/'  &c. 

In  framing  an  answer  it  is  seldom  possible  to  keep  the 
narrative  and  discovery  separate,  nor  is  it  generally  ad- 
visable to  do  so,  beyond  what  may  be  requisite  for  bring- 
ing out  distinctly  the  defence  itself.  For  by  interming- 
ling the  two,  and  embodying  in  the  discovery  a  running 
connection  with  the  defence,  it  is  rendered  less  available 
to  the  plaintiff,  who  can  scarcely  read  any  portion  of  it  in 
evidence,  without  at  the  same  time  reading  the  defensive 
statement. 

The  answer  is  generally,  though  not  always,  followed 
by  schedules,  containing  accounts,  lists  of  documents,  and 
other  matters  of  a  similar  kind,  which  have  been  asked  for 
by  the  bill,  or  which  the  defendant  considers  necessary  to 
his  defence.  And  such  schedules  are  referred  to  in  the 
r*^4^1  *^^^y  ^^  ^^®  answer,  by  stating  that  they  are  an- 
nexed thereto,  and  praying  that  they  may  be 
taken  as  part  thereof. 

After  the  answer  is  put  in,  the  next  step  in  procedure 
regards  the  question  of  its  sufficiency,  viz.,  whether  the 
defendant  has  given  all  due  discovery.  If  he  has  not, 
the  plaintiff  may  except.^     The  exceptions  are  signed  by 

*  Exceptions  are  applicable,  however,  only  -where  matters  alleged  in  the 
bill  are  not  suflBciently  answered,  and  not  because  the  answer  does  not  state 
matters  set  forth  in  avoidance  or  defence,  with  fullness  and  explicitness  : 
Lanum  v.  Steel,  10  Humph.  280  ;  or  for  mere  matters  of  irregularity  of 
form,  for  which  the  remedy  is  to  move  to  take  the  answer  oflF  file :  Vermilye 
».  Christie,  4  Sandf.  Ch.  376.  Where  an  answer  is  responsive  to  any  one 
material  allegation,  it  cannot  be  stricken  from  the  file  as  frivolous,  but  the 
remedy  is  by  exception :  May  v.  Williams,  17  Ala.  23. 


OF    THE    DEFENCE.  677 

counsel,  and  are  delivered  within  a  limited  time  to  the 
proper  officer.^  They  are  headed  with  the  name  of  the 
cause,  and  are  entitled  "Exceptions  taken  by  the  said 
complainant  to  the  insufficient  answer  of  the  said  defend- 
ant." They  then  go  on  successively,  "  First,  for  that  the 
said  defendant  has  not,  to  the  best  of  his  knowledge,  re- 
membrance, information,  and  belief,  answered  and  set 
forth  whether,"  &c.,  following  the  words  of  the  interroga- 
tory which  has  been  insufficiently  answered ;  "  Secondly, 
for  that  the  said  defendant  has  not  in  manner  aforesaid 
answered  and  set  forth  whether,"  &c.,  following  the  words 
of  the  next  interrogatory  which  has  been  insufficiently 
answered ;  and  so  on  throughout ;  and  they  then  conclude, 
"  In  all  which  particulars  the  said  complainant  excepts  to 
the  answer  of  the  said  defendant,  and  humbly  prays  that 
the  said  defendant  may  be  compelled  to  put  in  a  sufficient 
answer  thereto."  If  the  defendant  does  not  submit  to  the 
exceptions,  they  are  referred  to  one  of  the  Masters  for 
consideration ;  and  if  he  reports  the  answer  insufficient,  a 
further  answer  must  be  filed  on  the  points  excepted  to. 
If  either  party  is  dissatisfied  with  the  Master's  decision, 
he  may  bring  the  question  before  the  Court  by  excep- 
tions to  the  report,  and  it  will  then  be  finally  decided.  If 
the .  defendant  puts  in  a  second  or  third  insufficient  an- 
swer, the  plaintiff  does  not  deliver  new  exceptions,  but 
must  refer  it  for  insufficiency  on  the  old  ones,  pointing 
out  in  the  order  which  he  obtains,  the  particular  excep- 
tion or  exceptions  to  which  he  requires  a  further  answer.^ 
If  a  third  answer  is  reported  insufficient,  the  defendant  is 

^  Improperly  or  carelessly  drawn  exceptions  will  be  overruled  :  Duke  of 
Brunswick  v.  Duke  of  Cambridge,  12  Beav.  279 ;  McKeen  v.  Field,  4  Edw. 
Ch.  879. 

2  See  Rider  v.  Biely,  2  Md.  Ch.  16. 


678  ADAMS'S    DOCTRINE    OF    EQUITY. 

examined  personally  on  interrogatories ;  and  is  committed 
to  prison  until  he  shall  have  perfectly  answered  them.^ 
r*^4.fi1        *The  next  step,  after  the  sufficiency  of  the  an- 
swer is   determined,  is  the  amendment  of  the 
plaintiff's  bill.^     Before  the  answer  is  filed,  the  plaintiff 

^  See,  on  the  practice  as  to  exceptions  to  answers,  Rules  in  Equity  of  U. 
S.  Courts,  No.  Ixi.,  &c. ;  Penn.,  xL,  xliii.,  &c. 

*  See,  as  instances  of  amendment,  Noyes  v.  Sawyer,  3  Verm.  160 ;  Aren- 
dell  V.  Blackwell,  1  Dev.  Eq.  354  ;  Stephens  v.  Terrel,  3  Monr.  131 ;  Gayle 
V.  Singleton,  T  Stew.  566  ;  Ontario  Bank  v.  Schermerhorn,  10  Paige  109 ; 
Ayres  v.  Valentine,  2  Edw.  Ch.  451  ;  Buckley  v.  Corse,  Saxton  504;  West 
V.  Hall,  3  Har.  &  J.  221 ;  Walker  v.  Hallett,  1  Ala.  N.  S.  379 ;  Jennings 
V.  Springs,  1  Bailey  Eq.  181 ;  Baynton  u.  Barstow,  38  Maine  577.  But  an 
amendment  will  not  be  permitted,  unless  it  appears  that  the  plaintiff  will 
be  entitled  to  relief  upon  the  case  made  by  the  bill,  after  the  amendment 
made  :  Mitchell  v.  Lenox,  1  Edw.  Ch.  428.  Nor  where  the  court  is  satisfied 
that  the  proposed  allegation  cannot  be  substantiated  :  Prescott  v.  Ilubbell, 
1  Ilill.  Ch.  210.  Nor  where  the  matter  of  the  proposed  amendment  might, 
with  reasonable  diligence,  have  been  inserted  in  the  original  bill :  North 
American  Coal  Co.  v.  Dyett,  2  Edw.  Ch.  115.  Nor  when,  on  demurrer,  a 
bill  has  been  dismissed  on  the  merits  of  the  case  as  stated,  for  want  of 
equity  :  Lyon  v.  Tallmadge,  1  Johns.  Ch.  184.  See  Farmers'  and  Mechanics' 
Bank  v.  Griffith,  2  Wis.  443. 

Amendments  to  a  bill  can  only  be  granted  where  the  bill  is  defective  in 
parties,  or  in  the  prayer  for  relief,  or  in  the  omission  or  mistake  of  a  fact 
or  circumstance  connected  with  the  substance,  but  not  forming  the  sub- 
Btance  itself,  nor  repugnant  thereto ;  and  not  so  as  to  create  a  different  case 
or  a  new  bill,  or  it  will  be  demurrable  :  Carey  v.  Smith,  11  Ga.  539  ;  Lar- 
kins  V.  Biddle,  21  Ala.  252  ;  Lyon  v.  Tallmadge,  1  Johns.  Ch.  184  •,  Garner 
V.  Keaton,  13  Ga.  431  ;  Humbly  v.  Stainton,  24  Ala.  712  ;  Shields  v.  Bar- 
row, 17  How.  U.  S.  130  ;  School  Dist.  v.  Macloon,  4  Wis.  79.  So  they  are 
permissible  only  as  respects  matters  occurring  prior  to  the  filing  of  the 
original  bill :  Burke  v.  Smith,  15  111.  158.  On  demurrer,  however,  the  court 
cannot  inquire  into  the  competency  or  regularity  of  an  amendment  pre- 
viously allowed  by  the  order  of  the  court :  McGehee  v.  Jones,  10  Ga.  127. 
An  injunction  or  other  sworn  bill  cannot  be  amended  by  strilcing  out  ma- 
terial and  substantial  allegations  and  charges  ;  but  only  by  addition  of  ex- 
planatory or  supplemental  statements  :  Carey  r.  Smith,  11  Ga.  539;  and 
in  such  case  the  amendment  must  also  be  verified  under  oath.  The  com- 
plainant also  must  show  a  sufficient  excuse,  and  the  application  must  be 
made  as  soonasthenecessity  is  discovered:  Id. ;  McDougald v.  Dougherty, 


OF    THE    DEEFNCE.  679 

may  amend  as  often  as  he  thinks  fit ;  but  after  an  answer, 
he  is  precluded  from  doing  so,  until  its  sufficiency  or  in- 
sufficiency is  admitted  or  determined.  If  the  answer  be 
insufficient,  he  is  remitted  to  his  former  right  of  amend- 
ing at  discretion.  If  it  be  sufficient,  he  is  entitled  as  of 
course  to  one  order  for  amendment,  but  any  subsequent 
order  must  be  obtained  on  special  grounds.  The  object 
of  amendment  may  be  either  to  vary  or  add  to  the  case 
originally  made,  or  to  meet  the  defence  by  new  matter. 
The  old  method  of  doing  this  was  by  a  special  replication, 
followed  up,  if  necessary,  by  rejoinder,  surrejoinder,  &c., 
according   to  the   forms   of  pleading  at  law.     But   the 

11  Ga.  570.  Where  the  new  matter  would  affect  the  opposite  party  preju- 
dicially, it  should  not  have  relation  back  to  the  time  of  filing  the  original 
bill,  but  the  suit  should  be  considered  as  pending  only  from  the  time  of 
amendment:  McDougald  t;.  Dougherty,  11  Ga.  570.  On  an  amendment, 
however  trifling,  at  any  time  before  answer,  the  general  rule  is,  though  its 
reasonableness  has  been  doubted,  that  the  defendant  may  demur  de  novo 
to  the  whole  bill.  But  where  the  amendment  is  made  after  a  demurrer 
made  and  decided  and  answer  filed,  the  defendant  cannot  demur  again  to 
the  whole  bill,  unless  the  amendment  is  so  far  material  as  to  vary  the  case 
made  by  the  original  bill,  and  change  the  complainant's  equity  :  Booth  v. 
Stamper,  10  Ga.  109.  After  the  pleadings  are  made  up,  and  the  cause  set 
down  for  trial,  the  bill  is  not  amendable,  except  within  the  discretion  of 
the  court  upon  special  cause  shown  ;  and  this  whether  it  be  a  sworn  bill 
or  not.  If  an  amendment  be  made  after  issue  joined,  without  order  and 
verification  in  a  sworn  bill,  it  will  be  struck  out  on  motion :  Molyneaux  v. 
Collier,  13  Ga.  406  ;  see  Michan  v.  Wyatt,  21  Ala.  813.  An  amended  bill 
is  to  be  considered  in  many  respects  as  an  original  bill :  Carey  v.  Smith, 
11  Ga.  539  ;  and  when  a  new  defendant  is  added,  it  is  entirely  original  as 
to  him,  and  he  is  entitled  to  the  same  time  to  plead,  answer,  and  demur, 
as  to  an  original  suit :  Hoxey  v.  Carey,  12  Ga.  534, 

See,  on  the  subject  of  amendments.  Rules  in  Equity  in  the  U.  S.  Courts, 
Nos.  xxviii.,  XXXV.,  xlvi. ;  in  Pennsylvania,  Nos.  xlviii.  to  liv.  Under  these 
rules  it  is  held  that  an  amendment  to  a  bill  in  equity,  which  would  so 
change  its  character  as  to  make  it  substantially  a  new  case,  will  not  be 
allowed  after  the  cause  has  been  argued  ;  especially  when  no  evidence  is 
offered  to  show  that  the  amendment  could  not  have  been  made  part  of  the 
original  bill :  Snead  v.  McCoull,  12  How.  U.  S.  407. 


680  ADAMS's    DOCTRINE    OF    EQUITY. 

modern  practice  is  to  amend  the  bill.  If  the  amendments 
make  further  discovery  requisite,  the  plaintiff  may  call 
for  a  further  answer.  And  if  he  has  successfully  excepted 
to  the  answer,  and  the  exceptions  have  not  been  answered, 
he  may  require  the  amendments  to  be  answered  at  the 
same  time.  If  the  plaintiff  does  not  require  a  further 
answer,  the  defendant  may  nevertheless  file  one  if  he  con- 
siders it  material  to  do  so.{d) 

The  right  of  thus  amending,  by  introducing  altered  or 
additional  statements,  is  not  absolutely  confined  to  the 
plaintiff.  The  defendant  may  also  under  special  circum- 
stances obtain  a  similar  indulgence  ;^  but  as  an  answer  is 

{d)  Orders  of  May,  1845,  Ixix.,  Ixx.,  Ixxi.;  1  Dan.  C.  P.  376,  400. 

^  In  mere  matters  of  form,  or  mistakes  of  dates,  or  verbal  inaccuracies, 
Courts  of  Equity  are  very  indulgent  in  allowing  amendments  of  answers  5 
but  reluctant  to  allow  amenduients  in  material  facts,  or  such  as  essentially 
change  the  ground  taken  in  the  original  answer :  Smith  v.  Babcock,  3 
Sumn.  583 ;  see  also  Jackson  v.  Outright,  5  Munf.  308  ;  McWilliams  v. 
Herndon,  3  Dana  5G8 ;  Stephens  v.  Terrel,  3  Monr.  131 ;  Oarey  v.  Ector,  7 
Ga.  99 ;  Thomas  v.  Doub,  1  Md.  252  ;  Mounce  v.  Byars,  11  Ga.  180.  As 
a  general  rule,  a  special  case  must  be  shown,  before  the  court  will  allow  a 
defendant  to  amend  his  answer.  Amendments,  however,  will  be  allowed 
where  new  matter  has  come  to  the  knowledge  of  the  defendant  since  his 
answer  was  filed,  or  in  case  of  surprise  or  mistake,  or  where  an  addition 
has  been  made  to  the  draft  of  the  answer  after  the  defendant  has  perused 
it ;  and  in  some  other  special  cases.  The  unwillingness  of  the  court  to 
permit  a  defendant  to  change  or  add  to  the  grounds  of  defence  set  up  in 
the  first  answer,  is  increased,  where  the  application  is  made  after  the 
opinion  of  the  court  and  the  testimony  have  indicated  how  it  may  be  modi- 
fied to  accomplish  his  purposes  :  Williams  v.  Savage  Manufact.  Oo.,  1  Md. 
Ch.  { 06 ;  and  see  Oampion  v.  Killey,  1  McOart.  229.  A  motion  for  leave 
to  file  a  supplementary  answer  must  be  accompanied  with  an  afiBdavit : 
Thomas  v.  Doub,  1  Md.  252. 

A  defendant  cannot  evade  the  rule  as  to  amending  his  answer,  by  means 
of  his  answer  to  a  supplemental  bill,  which  must  be  restricted  entirely  to 
the  matters  alleged  in  the  latter  :  Swan  v.  Dent,  2  Md.  Oh.  111. 

See  further,  on  this  subject,  Phelps  v.  Prothero,  2  De  G.  &  Sm.  274. 


OF    THE    DEFENCE.  681 

put  in  on  oath,  the  Court,  for  obvious  reasons,  will  not 
readily  suffer  alterations  to  be  made. 

Such  permission,  however,  may  be  obtained  on  a  full 
and  satisfactory  affidavit  showing  the  cause  of  the  omis- 
sion and  the  new  matter  intended  to  be  introduced,  in 
cases  where,  at  the  time  of  the  original  answer  being  put 
in,  the  defendant  was  ignorant  of  particular  facts,  and 
could  not  by  reasonable  diligence  have  known  them.  And 
the  like  indulgence  has  been  given,  where  the  defendant 
had  been  *induced  to  leave  out  a  fact  in  the  r-^oA'ji 
original  answer  by  the  mistaken  advice  of  his 
solicitor.^  But  the  Court  is  always  unwilling  to  give  this 
permission,  where  the  new  matter  would  be  prejudicial 
to  the  plaintiff,  though  it  will  be  inclined  to  yield  if  it  is 
intended  for  his  benefit.-  If  the  error  to  be  corrected 
is  a  mere  matter  of  form,  it  may  be  done  by  amending 
and  re-swearing  the  answer.  But  when  the  object  is  to 
correct  a  mistaken  statement,  or  to  introduce  new  matter, 
it  must  be  done  by  a  supplemental  answer,  leaving  the 
former  answer  on  the  record,  (e)  If  the  defendant  cannot 
obtain  permission  to  file  a  supplemental  answer,  he  has 
no  other  way  of  correcting  his  original  answer.  He  can- 
not do  so  by  filing  a  cross  bill.(/) 

(fi)  Curling  v.  Townshend,  19  Vea.  628 ;  Greenwood  v.  Atkinson,  4  Sim. 
54 ;  Fulton  v.  Gilmore,  1  Ph.  522  :  Bell  v.  Dunmore,  7  Bear.  283  ;  1  Dan. 
Ch.  P.  752,  757. 

(/)  Berkley  c.  Rider,  2  Ves.  533,  537. 
\ 

^  A  defendant  may,  for  good  cause  shown,  be  permitted  to  amend  his 
answer,  and  plead  the  Statutes  of  Frauds  and  Limitations,  after  the  issue 
joined,  and  it  is  sufficient  ground  that  the  defendant's  counsel  advised  him 
that  he  could  take  advantage  of  such  defence  without  pleading :  Jackson 
V.  Outright,  5  Munf.  308. 

»  See  Western  Reserve  Bank  r.  Stryker,  1  Clarke  Ch.  380,  383 ;  Mounce 
v.  Byars,  11  Ga.  180. 


682  ADAMS's    DOCTRINE    OF    EQUITY. 

The  final  results  of  the  pleadings  is  that  the  ultimately 
amended  bill,  and  the  answer  or  successive  answers  of 
the  defendant,  constitute  the  whole  record. 

It  then  becomes  the  plaintiff 's  duty  to  consider  the 
nature  of  the  allegations  in  the  answer,  and  their  bearing 
on  his  own  case.  If  the  answer  admits  his  claim,  and  he 
is  content  that  it  shall  be  taken  as  true  throughout,  the 
cause  may  be  heard  on  bill  and  answer.  If  he  intends 
to  controvert  any  part  of  the  answer,  or  requires  ad- 
ditional proof  of  his  case,  he  must  join  issue  with  the  de- 
fendant, in  which  case  he  is  required  to  file  a  replication, 
stating  the  course  he  intends  to  pursue  ;^  and  it  is  re- 
quired to  be  as  nearly  as  possible  in  the  following  form : 
"The  plaintiff  in  this  cause  hereby  joins  issue  with  the 
defendant."  (^) 

On  the  filing  of  a  replication  the  cause  is  at  issue,  and 
the  parties  proceed  to  the  proof  of  their  respective 
cases,  (/i)  If  the  plaintiff  omit  to  file  a  replication  in 
time,  the  defendant  may  dismiss  the  bill  for  want  of 
prosecution.  («)^ 

{g)  Orders  of  May,  1845,  xciii. 

(A)  Orders  of  May,  1845,  16,  37-41,  93 ;  1  Dan.  Ch.  P.  c.  19. 

(i)  Orders  of  1845,  xciv. ;  1  Dan.  Ch.  P.  767,  784. 

^  Special  replications  are  now  disused:  White  v.  Morrison,  11  111,  361 ; 
Duponti  V.  Mussy,  4  "Wash.  C.  C.  128 ;  and  are  expressly  prohibited  by  the 
rules  in  equity  of  the  U.  S.  Courts,  No.  xlv.,  and  of  Penn.,  xlviii.  The 
general  replication,  however,  puts  in  issue  only  the  allegations  of  bill  and 
answer.  The  proper  course  is  for  the  complainant,  if  he  is  aware  of  an  in- 
tended defence,  to  anticipate  it  in  his  bill  by  suitable  charges  and  allega- 
tions ;  or  he  may  have  leave  to  amend  on  motion,  where  necessary :  White 
V.  Morrison  ;  Duponti  v.  Mussy.  Joining  issue  on  an  answer  is  a  waiver  of 
any  mere  technical  objections  to  the  form  in  which  the  defences  in  such 
answer  are  represented:  McKim  v.  White  Hall  Co.,  2  Md.  Ch.  510.  A 
general  replication  waives  all  objection  to  the  sufiBciency  of  the  answer : 
Slater  v.  Maxwell,  6  Wall.  (U.  S.)  268. 

'  See  equity  rules  U.  S.  Courts,  No.  Ixvi. ;  of  Pennsylvania,  No.  xlvii. 

Where  a  suit  becomes  nugatory  by  matters  subsequent,  as  where  filed  on 


OF    INTERLOCUTORY    ORDERS.  683 


*CH AFTER    y.  [*348] 

OF   INTERLOCUTORY   ORDERS. 

The  answer  of  the  defendant  is  the  chief  foundation  of 
interlocutory  orders,  that  is,  orders  not  made  at  the  hear- 
ing of  the  cause,  but  obtained  during  its  progress  for  inci- 
dental objects.  And  such  orders,  therefore,  will  naturally 
fall  under  our  notice  at  this  stage  of  our  inquiry. 

The  mode  of  obtaining  interlocutory  orders  is  either 
by  a  viva  voce  application,  called  a  motion,  or  by  a  written 
one  called  a  petition.  The  statements  made  in  the  an- 
swer have  generally  a  considerable  influence  on  the  appli- 
cation, and  in  some  instances  they  are  the  only  admissible 
evidence ;  where  other  evidence  is  admissible  it  is  brought 
forward,  not  by  the  regular  examination  of  witnesses, 
but  by  the  affidavits  of  voluntary  deponents,  (a) 

It  is  not  necessary  for  the  purpose  of  this  Treatise  to 
discuss  the  practice  on  motions  and  petitions.  /  Bat  it  will 
be  sufficient  to  observe  that  they  are  divided  into  two 
classes,  viz.,  1.  Motions  and  petitions  of  course,  or  such 

[a]  2  Dan.  Ch.  P.  c.  30,  of  Affidavits. 

the  authority  of  a  reported  case,  afterwards  reversed,  the  Court  has  juris- 
diction, on  motion  to  dismiss  it  without  costs :  Sutton,  &c.,  Co.  v.  Hitchens, 
15  Beav.  161. 

A  plaintiflF  in  Chancery  has  a  right  to  dismiss  his  bill  at  any  time  before 
final  hearing  upon  payment  of  costs,  if  he  be  not  in  contempt :  Elderkin 
r.  Fitch,  2  Cart«r  (Ind.)  90.  But  to  this  there  may  be  some  exceptions. 
See  Saylor's  Appeal,  39  Penn.  St.  495. 


684  ADAMS'S    DOCTRINE    OF    EQUITY. 

as  seek  an  order  which  by  the  practice  of  the  Court  may 
be  granted  on  asking,  without  hearing  both  sides  ;  and  2. 
Special  motions  or  petitions,  or  those  which  can  only  be 
granted  for  cause  shown.  Where  the  application  is  of  the 
latter  kind,  it  will  not  be  granted  ex  'parte,  except  in  cases 
of  emergency,  but  notice  of  the  motion,  or  a  copy  of 
pqiQ-|  *the  petition,  must  be  previously  served  on  all 
parties  interested.  (^) 

The  procedure  by  petition  is  also  resorted  to  for  a 
variety  of  objects  not  arising-  in  the  progress  of  a  suit, 
but  dealt  with  under  the  summary  jurisdiction  by  statute, 
already  noticed  as  existing  in  the  Court,  (c)  e.  g.,  for  con- 
veyance by  incapacitated  trustees.  And  in  one  class  of 
cases,  where  the  appointment  of  a  guardian  and  allowance 
of  maintenance  for  an  infant  is  required,  the  same  course 
is  sanctioned,  as  already  observed,  by  the  inherent  au- 
thority of  the  Court,  (c?)  The  jurisdiction  over  solicitors, 
and  in  lunacy  and  bankruptcy,  is  also  exercised  by  orders 
on  petition. 

The  objects  of  interlocutory  orders  are  numerous.  They 
include,  for  instance,  the  issuing  of  attachments  or  other 
process  of  the  Court,  the  taking  of  bills  pro  confesso,  the 
compelling  of  plaintiff  to  elect  whether  he  will  sue  at  law 
or  in  equity,  the  dismissal  of  bills  for  want  of  prosecution, 
and  the  taking  of  any  other  steps  to  remedy  delay  or 
irregularity  in  the  cause.  But  an  inquiry  into  orders  of 
this  class  would  turn  principally  on  technical  rules  of 
practice,  and  would  be  unsuited  to  our  present  purpose. 
The  only  objects  of  interlocutory  orders  which  seem  mate- 
rial to  be  here  noticed  are  five  in  number,  viz.,  1.  The 

(b)  2  Dan.  Ch.  P.  c.  31  ;  Interlocutory  Application. 

(c)  Supra,  Introduction,  2  Dan.  Ch,  P.  c.  40. 
{d )  Supra,  Infants,  2  Dan.  Ch.  P.  29. 


OF    INTERLOCUTORY    ORDERS.  685 

production  of  documents ;  2.  The  payment  of  money  into 
Court ;  3.  The  appointment  of  a  receiver ;  4.  The  grant  of 
an  injunction  ;  and  5.  A  writ  ofne  exeat  regno. 

I.  The  production  of  documents  is  ordered  for  comple- 
tion of  the  discovery  in  the  defendant's  answer,  (e)^ 

The  discovery  obtained  from  the  answer  itself  is  not 
the  whole  to  which  the  plaintiif  is  entitled.  It  gives  him 
a  statement  by  the  defendant  on  oath  as  to  all  facts  to 
which  he  was  interrogated,, and  also  a  schedule  of  all  doc- 
uments in  the  defendant's  power  relating  to  the  subject- 
matter  of  the  suit.  But  the  documents  still  remain  to  be 
examined,  and  *the  information  which  they  con-  rHioKm 
tain  is  frequently  the  most  important  part  of  the 
discovery.  For  the  purpose  of  obtaining  such  examina- 
tion, the  plaintiff  is  entitled,  either  before  or  after  the 
sufficiency  of  the  answer  has  been  determined,  and  with- 
out prejudicing  any  question  on  that  point,  or  at  any  sub- 
sequent period  in  the  cause,  to  move  that  "  the  defendant 
may  produce,  and  that  the  plaintiff  may  have  liberty  to 
inspect,  and  take  copies  of  all  the  documents  so  scheduled, 
and  that  the  same  may  be  produced  before  the  examiner 
and  at  the  hearing  of  the  cause." (/)  Upon  this  applica- 
tion an  order  will  be  made  that  they  shall  be  deposited 
with  the  clerk  of  records  and  writs,  or,  if  a  special  reason 
be  shown,  e.  g.,  their  being  in  constant  use  in  the  defend- 
ant's business,  then  in  the  defendant's  own  office.  (^) 

The  doctrines  by  which  production  is  regulated  have 
been  already  discussed  in  reference  to  discovery,  viz.,  1. 
The  right  of  requiring  it  is  for  the  purpose  of  discovery 

(«)  2  Dan.  Ch.  P.  o.  38. 

{f)  Lane  v.  Paul,  3  Beav.  66 ;  Fencott  v.  Clarke,  6  Sim.  8. 

[g)  Prentice  v.  Phillips,  2  Hare  152. 

'  See  on  this  subject,  ante,  B.  i..  Ch.  1. 


686  ADAMs's    DOCTRINE    OF    EQUITY. 

alone,  and  does  not  depend  on  nor  will  be  aided  by  a  title 
to  possess  the  documents  themselves.  2.  The  existence 
of  the  right  must  be  shown  from  admissions  in  the  answer 
that  the  documents  are  in  the  defendant's  possession  or 
power,  and  that  they  are  of  such  a  character  as  to  consti- 
tute proper  matter  of  discovery  within  the  ordinary  rules. 
3.  It  is  a  right  belonging  to  a  plaintiff  only,  although  a 
defendant  may  occasionally  be  permitted  on  special 
grounds  to  delay  his  answer  until  some  document  ma- 
terial for  making  out  his  defence  has  been  produced  by 
the  plaintiff. 

II.  Payment  of  money  into  Court  is  directed  where 
the  defendant  admits  money  to  be  in  his  hands  which  he 
does  not  claim  as  his  own,  and  in  which  he  admits  that 
the  applicant  is  interested.  (7^)^ 

In  a  case  of  obvious  and  gross  misconduct,  where  the 
plaintiff  has  made  affidavit  of  the  facts,  and  the  defendant 
P^qr-i-i  *has  attempted  to  explain  them  by  a  counter  af- 
fidavit, this  order  has  been  made  before  answer 
on  the  admissions  in  the  defendant's  affidavit,  [i)  But  the 
general  rule  is,  that  it  shall  not  be  made  until  the  answer 
is  put  in,  and  that  it  must  be  sustained  entirely  on  the 
admissions  made.  The  reason  of  this  requirement  is  that 
the  motion  is  made  before  witnesses  can  be  regularly  ex- 
amined, and  therefore  the  defendant  may  fairly  claim  that 
either  his  answer  shall  be  taken  as  true,  or  that  the  adju- 
dication shall  be  delayed  till  he  has  an  opportunity  of 

(A)  2  Dan.  Ch.  P.  c.  36. 

{{)  Jervis  v.  White,  6  Ves.  738. 

'  See  on  this  subject,  Hosack  v.  Rogers,  9  Paige  468 ;  Clagett  v.  Hall,  9 
Gill  &  John.  81  ;  Contee  v.  Dawson,  2  Bland.  293  ;  Nokes  v.  Seppings,  2 
Phillips  19 ;  Maddox  v.  Dent,  4  Md.  Ch.  543  ;  Daniels'  Chan.  Prac,  Ch. 
xli. ;  Hagill  V,  Currie,  2  Ch.  L.  R.  449. 


OF    INTERLOCUTORY    ORDERS.  687 

proof,  (k)  The  admissions  necessary  to  warrant  the  order 
are,  first,  that  the  defendant  has  the  fund  in  his  hands, 
or  at  all  events  that  he  once  had  it,  and  has  not  legiti- 
mately disposed  of  it ;  secondly,  that  he  does  not  claim 
it  as  his  own ;  and  thirdly,  that  the  applicant  is  interested 
in  it.(/)^  If  the  admissions  in  the  answer  do  not  warrant 
the  application,  it  may  be  made  at  the  hearing  on  the 
evidence  in  the  cause,  or  may  be  made  between  the  ori- 
ginal hearing  and  the  hearing  on  further  directions,  either 
on  admission  in  the  examination  of  an  acting  party,  or  on 
the  Master's  report. (m)^ 

The  order  thus  made  is  strictly  one  of  precaution.  The 
fund  is  brought  into  Court,  that  it  may  be  preserved  until 
the  decree,  and  not  that  an  earlier  decision  of  the  cause 
may  be  made.  The  Court  will  not  therefore,  indirectly 
adjudicate  on  the  right,  as,  for  example,  by  directing  pay- 

{k)  Richardson  v.  Bank  of  England,  4  M.  &  C.  165,  176  ;  Boschetti  r. 
Power,  8  Beav.  98. 

{I)  Freeman  v.  Fairlie,  3  Meriv.  29,  39 ;  Meyer  v.  Montriou,  4  Beav. 
343 ;  Dubless  r.  Flint,  4  M.  &  C.  502. 

(»i)  Hatch  V. ,  19  Ves.  116  ;  Creak  v.  Capell,  6  Mad.  114. 

'  Those  who  make  the  motion  to  hare  money  brought  into  court,  must 
show  that  they  have  an  interest  in  the  sum  proposed  to  be  called  in,  and 
that  he  who  holds  it  in  his  possession,  has  no  equitable  right  to  it  what- 
ever :  and  the  facts  on  which  these  positions  are  based,  must  be  found  in 
the  case  as  it  then  stands,  either  admitted  or  so  established  as  to  be  open 
to  no  further  controversy  at  any  subsequent  stage  of  the  proceedings :  Hop- 
kins r.  McEldery,  4  Md.  Ch.  23.  A  contingent  interest,  however,  is  suflScient 
to  entitle  a  party  to  move  :  Ross  v.  Ross,  12  Beav.  89 ;  Bartlett  v.  Bartlett) 
4  Hare  631.  A  final  order  upon  a  petition  asking  the  defendant  to  bring 
money  into  court  for  the  purpose  of  investment,  cannot  be  passed  without 
notice  to,  or  hearing  of,  the  opposite  party,  who  has  answered  the  petition 
and  objected  to  the  application  :  Brooks  v.  Dent,  4  Md.  Ch.  473. 

'  The  order  cannot  be  made  on  motion  after  decree,  and  before  hearing 
on  further  directions,  merely  on  admissions  in  the  answers :  Binns  r.  Parr, 
7  Hare  288 ;  Wright  v.  Lukes,  13  Beav.  107. 


688  ADAMS'S    DOCTRINE    OF    EQUITY. 

ment  of  interest  to  one  of  the  litigants,  but  will  retain  the 
fund  untouched  until  the  hearing  of  the  cause,  (w) 

The  principle  on  which  the  order  is  based  is  that  the 
fund,  of  which  payment  into  Court  is  asked,  is  a  fund 
held  by  the  defendant  in  trust ;  and  it  therefore  does  not 
apply  to  suits  for  a  mere  payment  of  a  debt  claimed  as 
due  from  the  defendant  to  the  plaintiff.  But  to  this  rule 
r*S521  ^^^^®  ^^®  *two  apparent  exceptions  :  the  one  in 
the  case  of  an  executor  who  owes  money  to  his 
testator,  the  other  in  that  of  a  purchaser,  sued  for  specific 
performance,  who  is  in  possession  of  the  land,  and  has 
not  paid  his  purchase-money.  The  reason  of  the  first 
exception  is  that  the  executor,  being  himself  both  debtor 
and  creditor,  is  presumed  in  equity  to  have  discharged 
himself  of  the  debt,  and  to  have  retained  the  money  as 
part  of  the  assets,  (o)  That  of  the  second  is,  that  though 
the  purchaser  may  be  ultimately  entitled,  according  to 
the  result  of  the  suit,  either  to  the  estate  or  to  the 
purchase-money,  yet  he  cannot  be  entitled  to  both ;  and 
therefore  his  election  to  keep  possession  of  the  estate  is 
in  substance  an  election  to  be  a  trustee  of  the  purchase- 
money,  (p) 

The  mode  of  obtaining  the  order  is  by  a  motion  made 
on  notice,  that  the  defendant  may  be  ordered  on  or  before 
a  specific  day  to  pay  the  amount  into  the  name,  and  with 
the  privity  of  the  Accountant-General,  in  trust  in  the 
cause ;  and  that  the  same,  when  paid  in,  w^th  all  accumu- 
lations thereon,  may  be  laid  out  in  the  purchase  of  three 
per  cent,  consols. 

[n)  Nedby  v.  Nedby,  4  M.  &  C.  367. 
(o)  Richardson  v.  Bank  of  England,  4  M.  &  C.  165. 
[p)  Morgan  v.  Shaw,  2  Meriv.  138  ;  Tindal  v.  Cobham,  2  M.  &  K.  385  ; 
Cutler  V.  Simons,  2  Meriv.  103. 


OF    INTERLOCUTORY    ORDERS.  689 

If  the  object  is  to  obtain  a  transfer  of  stock,  the  terms 
of  notice  are  varied  accordingly. 

III.  A  receiver  is  appointed  where  an  estate  or  fund  is 
in  existence,  but  there  is  no  competent  person  entitled  to 
hold  it,  or  the  person  so  entitled  is  in  the  nature  of  a 
trustee,  and  is  misusing  or  misapplying  the  property.  (5')^ 

The  former  of  these  grounds  applies  where  the  owner 
of  property  is  dead,  and  probate  or  administration  has  not 
been  granted,  but  is  bond  fide  litigated  in  the  Ecclesias- 
tical Courts.  In  this  case  a  receiver  will  be  appointed  of 
the  personal  assets,  not  on  the  ground  that  the  contest 
exists,  but  because  there  would  otherwise  be  no  proper 
person  to  receive  them.  If,  on  the  contrary,  probate'or 
administration  has  *been  granted,  there  is  a  pro-  r*QXQ-i 
per  person,  and  the  pendency  of  litigation  to  re- 

{q)  2  Dan.  Ch.  P.  c.  35  ;  [Chap,  xxviii.,  3d  Amer.  ed.] 

*  A  Court  of  Equity  will  appoint  a  receiver,  whenever  it  can  be  made  to 
appear  that  the  property  in  regard  to  which  the  controversy  exists,  is  in 
danger:  Ladd  v.  Harvey,  1  Foster  (N.  H.)  514;  Reid  v,  Reid,  38  Ga.  24. 
But  it  must  be  a  strong  case  that  will  justify  such  appointment,  which  is 
the  ultimate  resort  of  a  Court  of  Equity.  It  is  a  high  power,  never  exercised 
where  there  exists  any  other  safe  or  expedient  remedy  :  Speights  v.  Peters, 
9  Gill  472  ;  Dougherty  v.  McDougal,  10  Ga.  121 ;  Furlong  v.  Edwards,  3 
Md.  99  ;  Blondheim  v.  Moore,  11  Id.  374 ;  Haight  v.  Burr,  19  Id.  134;  and 
a  Court  of  Chancery  will  never. appoint  a  receiver  pending  a  plea  to  its 
jurisdiction,  but  to  guard  against  abuse  of  dilatory  pleas  will  order  an  im- 
mediate hearing  or  trial  of  the  plea:  Ewing  t.  Blight,  3  Wall.  Jr.  139. 

The  granting  of  a  receiver  is  a  matter  of  discretion,  to  be  governed  by  a 
view  of  the  whole  circumstances  of  the  case,  one  of  such  circumstances 
being  the  probability  of  the  plaintiflF  being  ultimately  entitled  to  a  decree  : 
Nichols  V.  The  Perry  Patent  Arm  Co.,  3  Stockton  126.  Thus  a  receiver  was 
refused  in  a  case  where  important  points  arose  upon  the  construction  of 
deeds,  that  construction  being  attended  with  considerable  doubt  and  diffi- 
culty :  Owen  v.  Homan,  3  M.  &  G.  378 ;  s.  c.  4  House  Lds.  Cas.  997 ;  see 
Lenox  v.  Notrebe,  1  Hempstead  225 ;  see  also  Baker  v.  Backers,  32  111. 
80.  A  receiver  has  no  powers  except  those  conferred  upon  him  by  the 
order  for  his  appointment :  Grant  v.  Davenport,  18  Iowa  179. 
44 


690  ADAMS's    DOCTRINE    OF    EQUITY. 

call  the  grant  will  not  warrant  a  receiver,  (r)^  On  the 
same  principle  a  receiver  will  be  appointed  of  an  infant's 
estate,  if  it  be  not  vested  in  a  trustee,  for  he  is  himself 
incompetent  to  take  charge  of  it. 

The  most  obvipus  instance  of  the  second  ground  'of 
appointment  is  in  the  case  of  actual  trustees,  who  are 
abusing  their  trust,  and  bringing  the  property  into  danger. 
But  unless  there  be  misconduct  on  their  part,  the  Court 
will  not  interpose  to  take  the  property  from  them  for  the 
mere  purpose  of  confiding  it  to  an  officer  of  its  own.(5) 

If,  again,  the  legal  owner,  though  not  an  actual  trustee, 
holds  the  property  subject  to  clear  equities  in  other  par- 
ties, but  is  using  it  in  a  manner  inconsistent  with  them, 
a  receiver  may  be  obtained  against  him.  On  this  prin- 
ciple an  equitable  mortgagee  may  have  a  receiver  against 
his  mortgagor.  If  there  be  a  prior  mortgagee  not  in  pos- 
session, the  receiver  may  be  appointed,  without  prejudice 
to  his  taking  possession ;  but,  if  he  be  in  possession,  a 
receiver  cannot  be  ordered  against  him  unless  the  appli- 
cant will  pay  off  his  demand,  as  he  states  it  himself.  A 
legal  mortgagee  cannot  have  a  receiver,  but  must  take 
possession  under  his  legal  title.  (^) 

(r)  Atkinson  v.  Henshaw,  2  Ves.  &  B.  85  ;  Kendall  v.  Kendall,  1  Hare 
152 ;  Keed  v.  Harris,  7  Sim.  639. 

(s)  Middleton  v.  Dodswell,  13  Ves.  266 ;  Browell  v.  Keed,  1  Hare  434; 
Bainbridge  v.  Blair,  3  Beav.  421  ;  Skinners'  Company  v.  Irish  Society,  1 
M.  &  C.  162. 

{<)  Berney  v.  Sewall,  1  Jac.  &  W.  627. 

^  Although  there  is  no  rule  of  practice  that,  in  cases  where  the  will  is  in 
contest  in  the  Ecclesiastical  Court,  the  Court  of  Chancery  will  not  grant  a 
receiver  where  the  property  is  in  the  hands  of  the  executor,  yet  it  must  be 
clearly  shown  that  the  nature  and  position  of  the  Court  are  such  as  to  war- 
rant the  interference  of  the  Court :  Whitworth  v.  Whyddon,  2  M.  &  G. 
56  ;  s.  c.  2  H.  &  Tw.  445 ;  15  Jur.  152;  In  Dimes  v.  Steinberg,  2  Sm.  & 
Giif.  75,  however,  an  injunction  and  receiver  were  granted  pending  a  suit 
to  recall  probate  of  a  will  alleged  to  have  been  fraudulently  obtained  by  the 
executor  and  a  legatee. 


OF    INTEBLOCUTORY    ORDERS.  691 

If  there  are  several  equitable  encumbrancers  the  Court 
will  put  the  property  in  the  possession  of  a  receiver,  to 
apply  the  profits  for  their  benefit  according  to  their  re- 
spective priorities,  permitting  legal  encumbrancers  to  pro- 
ceed at  law ;  and  the  appointment  will  not  prevent  their 
so  doing,  though  it  will  make  it  necessary  for  them  to  ob- 
tain leave  from  the  Court,  (u) 

*A  receiver  has  also  been  appointed  as  between 
vendor  and  purchaser  during  a  suit  for  specific  ^  J 
performance ;  but  the  order  was  made  under  special  cir- 
cumstances, the  purchaser  not  having  been  in  exclusive 
possession,  but  having  had  a  sort  of  mixed  possession 
with  the  vendor,  (t*) 

A  receiver  may  also  be  appointed  in  cases  of  partner- 
ship, where  one  of  the  partners,  having  got  the  business 
into  his  hands,  is  destroying  the  partnership  property,  or 
is  claiming  to  exclude  his  copartners  from  the  concern.^ 
In  this  case,  as  all  the  partners  have  an  equal  right  to  the 
management,  and  no  one  of  them  has  an  exclusive  right, 
the  Court  must  exclude  all  for  the  protection  of  all,  and 
will  appoint  a  receiver  to  get  in  the  assets.  It  cannot, 
however,  undertake  to  carry  on  the  trade,  and  will  there- 
fore only  interpose  with  a  view  to  dissolution,  (ei')^  On 
the  same  principle,  a  receiver  may  be  appointed  of  a  mine 

(m)  Davis  V.  Marlborough,  2  Sw.  138 ;  Angel  v.  Smith,  9  Ves.  335 ; 
Brooks  V.  Greathed,  1  J.  &  W.  178 ;  Smith  v.  Effingham,  2  Beav.  235  •, 
Pritchard  v.  Fleetwood,  1  Meriv.  54.  [See  Cortleyeu  v.  Hathaway,  3 
Stockt.  39.] 

[v]  Hall  V  Jenkinson,  2  Ves.  &  B.  125 ;  Boehm  v.  Wood,  2  J.  &  W.  236 ; 
Shakel  r.  Marlborough,  4  Mad.  463. 

(ic)  Waters  v.  Taylor,  15  Ves.  10;  Goodman  v.  Whitcomb,  1  J.  &  W. 
589 ;  Hale  v.  Hale,  4  Beav.  369  ;  Const  v.  Harris,  T.  &  R.  496 ;  Smith  r. 
Jeyes,  4  Beav.  503. 

^  See  Whitman  v.  Robinson,  21  Md.  30. 

'  See  note  1,  p.  241,  supra.  See  also  Sieghortner  v.  Weissenborn,  20  N. 
J.  Eq.  172. 


692  ADAMS's    DOCTRINE    OF    EQUITY. 

or  colliery,  which  is  regarded  rather  as  a  trade  or  partner- 
ship than  as  a  mere  tenancy  in  common.  (:r)  In  the  case 
of  a  mere  tenancy  in  common,  where  the  title  is  legal,  it 
is  doubtful  whether  the  Court  would  interfere.^  It  might 
compel  the  tenant  in  possession  to  account  to  his  co- 
tenant,  hut  would  probably  not  act  against  his  legal  pos- 
session. (^) 

There  is  also  jurisdiction  to  make  the  order,  though 
the  defendant  does  not  sustain  a  fiduciary  character,  but 
insists  on  a  distinct  adverse  title,  which  title  is  contested 
in  the  suit.  But  the  Court  will  be  reluctant  to  interfere, 
and  will  only  do  it  if  gross  fraud  or  imminent  danger  be 
shown.  (0)^ 

The  appointment  of  a  receiver,  like  payment  of  money 
P^qrr-i  *into  Court,  may  be  ordered  on  affidavit  before 
answer,  or  even  before  the  defendant  has  ap- 
peared, if  any  urgent  necessity  exist.^  But  the  application 
must  generally  be  made  after  answer,  and  must  be  sup- 
ported by  the  admissions  of  the  defendant,  (a) 

The  appointment,  when  made,  is  for  the  benefit  of  all 

(a:)  Jefferys  v.  Smith,  IJ.  &  W.  298. 

[y]  Tyson  v.  Fairclough,  2  S.  &  S.  i  42. 

(z)  Stilwell  w.  Wilkins,  Jac.  280;  Huguenin  v.  Basely,  13  Ves.  105; 
Jones  V.  Goodrich,  10  Sim.  327 ;  Clark  ».  Dew,  1  R.  &  M.  103 ;  Toldervy 
V.  Colt,  1  Y.  &  C.  621.     ' 

(o)  Lloyd  V.  Passingham,  3  Meriv.  697 ;  Ramsbottom  v.  Freeman,  4 
Beav.  145. 

^  See,  however,  Williams  v.  Jenkins,  11  Ga.  595. 

'  And  the  Court  will  not,  in  general,  interfere  at  the  instance  of  a  person 
alleging  a  legal  title  in  himself  against  other  persons  who  are  in  posses- 
sion of  the  estates,  to  grant  him  a  receiver,  or  put  them  out  of  possession : 
Talbot  V.  Scott,  27  L.  J.  Ch.  278  ;  4  K.  &  J.  96. 

'  A  temporary  or  ad  interim  receiver  may  not  only  be  appointed  before 
answer,  but  even  before  the  subpoena  to  appear  and  answer  has  been 
served,  when  it  is  shown  that  extraordinary  danger  would  ensue  unless 
the  property  were  taken  under  the  care  of  the  Court :  Jones  v.  Dougherty, 
10  Ga.  274;  Williams  jj..  Jenkins,  11  Id.  595. 


OF    INTERLOCUTORY    ORDERS.  693 

parties  interested,  and  not  for  that  of  the  applicant  alone. 
If  there  be  only  one  party  interested,  as  where  a  receiver 
is  appointed  of  an  infant's  estate,  the  possession  of  the 
receiver  is  considered  as  his  possession.  If  there  are  ad- 
verse claims  in  different  parties,  the  possession  of  the 
receiver  is  treated  as  the  possession  of  the  party  who 
ultimately  establishes  his  right.  (^)'^ 

IV.  An  injunction  is  granted  to  restrain  a  defendant,^ 
so  long  as  the  litigation  continues,  from  doing  acts  pro- 
ductive of  permanent  injury,  or  from  proceeding  in  an 
action  at  law,  where  an  equity  is  alleged  against  his  legal 
right,  (c) 

The  principle  of  injunctive  relief  by  decree  has  already 

(6)  Bainbrigge  v.  Blair,  3  Beav.  421 ;  Sharp  v.  Carter,  3  P.  Wms.  379. 
(c)  2  Dan.  Ch.  P.  ch.  32. 

^  The  appointment  of  a  receiver  does  not  determine  any  right,  or  affect 
the  title  of  either  party  in  any  manner  whatever ;  he  is  the  ofiBcer  of  the 
Court,  and  his  holding  is  the  holding  of  the  Court  for  him  from  whom  the 
possession  was  taken.  He  is  appointed  on  behalf  of  all  parties,  and  his 
appointment  is  not  to  oust  any  party  of  his  right  to  the  possession,  but 
merely  to  retain  it  for  the  benefit  of  the  party  ultimately  entitled ;  and 
when  he  is  ascertained,  the  receiver  will  be  considered  as  his  receiver : 
Ellicott  V.  Warford,  4  Md.  80 ;  Matter  of  Colvin,  3  Md.  Ch.  280.  See 
further,  as  to  the  power  and  authorities  of  receivers,  Porter  v.  Williams, 
5  Selden  142 ;  Receivers  ».  Patterson  Gaslight  Co.,  3  Zabrisk.  283. 

Where  a  receiver  is  appointed,  but  the  bill  is  afterwards  dismissed  for 
want  of  equity,  the  functions  of  the  receiver  cease,  inter  paries,  but  his  ac- 
countability as  an  officer  of  the  Court  continues.  The  fund  remains  subject 
to  the  order  of  the  Court,  and  will  be  returned  thereby  to  the  party  as 
whose  fund  it  was  taken,  unless  retained  upon  a  claim  properly  made  and 
presented  to  tlie  chancellor.  A  party  having  a  claim  on  a  fund  so  situated 
will  be  allowed  to  intervene,  pro  interesse  suo,  upon  a  proper  application. 
But  the  receiver,  as  such,  is  not  subject  to  the  process  of  garnishment: 
Field  V.  Jones,  11  Ga.  413. 

It  is  not  necessary  to  bring  to  a  hearing  a  suit  for  the  appointment  of  a 
receiver  pendente  lite :  Anderson  v.  Guichard,  9  Hare  275. 

*  An  injunction  cannot  be  granted  against  one  who  is  not  a  party  to  the 
suit :  Schalk  v.  Schmidt,  1  McCart.  268. 


694  ADAMS's    DOCTRINE    OF    EQUITY. 

been  considered  as  an  independent  subject.  (J)  We  are 
now  only  concerned  with  the  interlocutory  writ  issued  for 
the  protection  of  the  subject>-matter  until  litigation  is  de- 
cided. 

The  ordinary  mode  of  obtaining  this  injunction  is  by 
moving  after  notice  to  the  defendant ;  but  in  particular 
cases,  where  giving  notice  might  accelerate  tlie  mischief, 
it  will  be  granted  ex  parte  and  without  notice ;  e.  g.,  in 
cases  of  waste,  or  of  negotiating  a  bill  of  exchange,  and, 
even  where  that  special  ground  does  not  exist,  yet  if  the 
act  to  be  prohibited  is  such,  that  delay  is  productive  of 
serious  damage,  as  in  piracies  of  copyright  and  patent, 
an  ex  parte  injunction  may  be  obtained.  In  order  to 
obtain  an  injunction  ex  parte,  the  application  must  be 
r*S^fi1  ™^^^^  ^^  ^^^  *first  possible  moment,  and  all  the 
facts  must  be  fully  and  honestly  stated ;  if  any 
concealment  or  misrepresentation  be  detected,  the  in- 
junction will  be  dissolved,  although  the  facts,  if  truly 
stated,  would  have  been  sufficient  to  sustain  \i.{ey 

[d)  Supra,  Injunction. 

(e)  Hilton  v.  Granville,  4  Beav.  130. 

^  It  is  an  almost  universal  practice  to  dissolve  the  injunction,  where  the 
answer  fully  denies  all  the  circumstances  upon  which  the  equity  of  the 
bill  is  founded  ;  and  likewise  to  refuse  the  writ,  if  application  is  made  after 
the  coming  in  of  such  answer  :  Hoffman  v.  Livingston,  1  Johns,  Ch.  211  ; 
McFarland  v.  McDowell,  1  Car.  L.  R.  110  ;  Cowles  v.  Carter,  4  Ired.  Eq. 
105  ;  Livingston  v.  Livingston,  4  Paige  Ch.  Ill ;  Gibson  v.  Tilton,  1  Bland 
Ch.  355  ;  Perkins  v.  Ilallowell,  5  Ired.  Eq.  24  ;  Williams  v.  Berry,  3  Stew. 
&  Port.  284 ;  Green  v.  Phillips,  6  Ired.  Eq.  223  ;  Wakeman  v.  Gillespy,  5 
Paige  112;  Stoutenburgh  v.  Peck,  3  Green  Ch.  446  ;  Ilollister  v.  Barkley, 
9  N.  H.  230  ;  Eldred  v.  Camp,  Ilarring.  Ch.  163  ;  Freeman  v.  Elmendorf, 
3  Halst.  Ch.  655 ;  Adams  v.  Whiteford,  9  Gill  501 ;  Furlong  v.  Edwards, 
3  Md.  99;  Dennis  v.  Green,  8  Ga.  197  ;  Wood  v.  Patterson,  4  Md.  Ch.  335  ; 
Harris  v.  Sangston,  Id.  394  ;  Woodworth  v.  Rogers,  3  Wood.  &  M.  135 ; 
AVrightr.  Grist,  1  Busb.  Eq.  203;  Mahon  v.  Central  Bank,  17  Ga.  Ill  ; 
Greenon  v.  Hoey,  1  Stockt.  137 ;  Van  Kuren  v.  Trenton  Manufact.  Co.,  2 


OF    INTERLOCUTORY    ORDERS.  695 

If  the  injunction  be  applied  for  before  the  answer,  it 
must  necessarily  be  sustained  on  affidavit;  and  the  de- 

^eas.  302  5  Winslow  v.  Hudson,  21  N.  J.  Eq.  172  ;  Yonge  v.  Sheppard,  44 
Ala.  315.  On  motion  to  dissolve  an  injunction  upon  answer,  exceptions 
filed  are  no  objection  to  the  motion,  unless  they  affect  the  answer  in  points 
relating  to  the  grounds  of  the  injunction :  Lewis  v.  Leak,  9  Ga.  95. 

An  answer  made  and  sworn  to  before  defendant's  death,  though  filed 
subsequently,  may  be  used  on  a  motion  to  dissolve  the  injunction:  Dennis 
».  Green,  8  Ga.  197. 

Where  the  bill  shows  no  equity  on  its  face,  the  injunction  will  of  course 
be  dissolved :  Stark  v.  Wood,  9  Gratt.  40. 

It  is  a  general  rule,  that  an  injunction  will  not  be  dissolved,  on  answer, 
until  the  answers  of  all  the  defendants  are  put  in.  See  Money  v.  Jordan , 
13  Beav.  229.  But  there  are  many  exceptions  ;  e.  g.,  it  will  be  considered 
unnecessary,  if  those  who  have  not  answered  are  merely  formal  parties : 
Higgins  V.  Woodward,  Hopkins'  Ch.  342.  Or  parties  who  cannot  be  com- 
pelled to  answer,  as  a  foreign  corporation :  Bait.  &  Ohio  R.  R.  v.  Wheel- 
ing, 13  Gratt.  40.  So  it  may  be  dissolved  upon  the  answer  of  one  or  more 
defendants  within  whose  knowledge  the  facts  charged  especially  or  exclu- 
sively lie,  although  other  defendants  have  not  answered :  Dunlap  v.  Clem- 
ents, 7  Ala  539 ;  Coleman  v.  Gage,  1  Clarke  295 ;  Ashe  v.  Hale,  5  Ired. 
Eq.  55.  So  also  where  that  defendant  against  whom  the  gravamen  of  the 
charge  rests,  has  fully  answered  :  Depeyster  v.  Graves,  2  Johns.  Ch.  148  ; 
Noble  V.  Wilson,  1  Paige  164;  Stoutenburgh  v.  Peck,  3  Green  Ch.  446  ; 
Vliet  ».  Lowmason,  1  Id.  404  ;  Price  v.  Clevenger,  2  Id.  207.  See  also 
Goodwyn  v.  State  Bank,  4  Dessaus.  389.  And  this,  too,  where  all  the  de- 
fendants are  implicated  in  the  same  charge,  and  the  answer  of  all  can  and 
ought  to  come  in,  but  the  plaintifiF  has  not  taken  the  requisite  steps,  with 
reasonable  diligence,  to  speed  his  cause  :  Depeyster  v.  Graves,  ubi  supra. 
See  also  Bond  v.  Hendricks,  1  A.  K.  Marsh.  594. 

Upon  an  application  to  dissolve  an  injunction  on  bill  and  answer,  the 
defendant's  answer  is  entitled  to  the  same  credit  as  the  complainant's  bill. 
It  therefore  makes  no  difference  on  such  an  application  that  the  bill  is  sup- 
ported by  the  oaths  of  several  complainants :  Manchester  v.  Dey,  6  Paige 
295. 

There  is,  however,  no  inflexible  rule  with  regard  to  dissolving  an  in- 
junction, on  answer  denying  the  allegations  of  the  bill ;  the  granting  and 
continuing  an  injunction  must  always  rest  in  the  sound  discretion  of  the 
court,  to  be  governed  by  the  nature  of  the  case :  Roberts  v.  Anderson,  2 
Johns.  Ch.  204  ;  Poor  v.  Carleton,  3  Sumn.  70 ;  Bank  of  Monroe  v.  Scher- 
merhorn,  1  Clarke  303 ;  Holt  v.  Bank  of  Augusta,  9  Ga.  552 ;  Nelson  v. 
Robinson,  1  Hempst.  474;  Crutchfield  v.  Donelly,  16  Ga.  432;  Dent  v. 
Summerlin,  12  Id.  5;  Iloagland  r.  Titus,  1  McCart.  81  ;  Morris  Coal  Co.  v. 


696  ADAMS's    DOCTRINE    OF    EQUITY. 

fendant  may  resist  it  on  counter  affidavits  ;  or  if  it  has 
been  obtained  ex  parte,  he  may  move  to  dissolve  it  on 

Jersey  City,  3  Stockt.  13 ;  Conally  r.  Cruger,  40  Ga.  259 ;  De  Godey  v. 
Godey,  39  Cal.  157.  Thus  in  some  special  cases,  as  where  fraud  is 
the  gravamen  of  the  bilJ,  the  injunction  will  be  continued,  though  the  de- 
fendant has  fully  answered  the  equity  charged :  Dent  v.  Summerlin,  ut 
supr. ;  Nelson  v.  Robinson,  1  Hempst.  464  ;  Semmes  v.  Mayor  of  Colum- 
bus, 19  Ga.  471. 

Where  the  defendant  in  his  answer  admits,  or  does  not  deny  the  equity 
of  thQ  bill,  but  sets  up  new  matter  of  defence,  on  which  he  relies,  the  in- 
junction will  be  continued  to  the  hearing  :  Minturn  v.  Seymour,  4  Johns. 
Ch.  497 ;  Lindsay  v.  Etheridge,  1  Dev.  &  Bat.  Eq.  38  ;  Hutchins  v.  Hope, 
12  Gill  &  J.  244  ;  Lyrely  v.  Wheeler,  3  Ired.  Eq.  170  ;  Nelson  v.  Owen,  Id. 
175 ;  Drury  v.  Roberts,  2  Md.  Ch.  157 ;  Rembert  v.  Brown,  17  Ala.  667  } 
Deaver  v.  Irwin,  7  Ired.  Eq.  250 ;  Lewis  v.  Leak,  9  Ga.  95 ;  Hutchins  v. 
Hope,  7  Gill  119;  Wilson  v.  Mace,  2  Jones  Eq.  5,  149.  See  Carson  v. 
Coleman,  3  Stockt.  109  ;  Brewster  v.  The  City  of  Newark,  Id.  114  ;  West 
Jersey  R.  R.  v.  Thomas,  21  N.  J.  Eq.  205.  Thus,  for  example,  where 
the  bill  charges  the  receipt  of  money,  and  a  general  accountability, 
and  the  answer  admits  the  receipt,  and  seeks  to  account  for  the  money 
by  alleging  its  application  to  some  particular  purpose,  then  the  injunc- 
tion will  not  be  dissolved  on  the  answer.  But  when  the  bill  charges 
payment  on  a  particular  account,  and  the  answer  denies  that  any  payment 
was  made  on  that  account,  and  accompanies  the  denial  with  an  admission 
that  a  certain  sum  was  received,  as  a  payment  on  some  other  account,  then 
the  injunction  will  be  dissolved  ;  for  there  is  no  confession  and  avoidance 
by  new  matter,  but  a  positive  denial  of  the  allegation,  together  with 
an  explanation  of  a  circumstance  relied  on  to  give  color  to  an  allegation  : 
Deaver  v.  Erwin,  7  Ired.  Eq.  250. 

So  upon  motion  to  dissolve,  credit  can  only  be  given  to  the  answer  in  so 
.  far  as  it  speaks  of  responsive  matters,  within  the  personal  knowledge  of  the 
defendant,  and  unless,  so  speaking,  the  equity  of  the  bill  is  sworn  away,  the 
injunction  cannot  be  dissolved.  And,  on  the  other  hand,  so  much  of  the 
bill  as  is  not  denied  by  the  answer  is  taken  as  true,  and  if  any  one  of  its 
material  allegations  remains  unanswered,  the  injunction  will  be  continued : 
Brown  v.  Stewart,  1  Md.  Ch,  87  ;  Doub  v.  Barnes,  Id.  127  ;  Cronise  v. 
Clark,  4  Id.  403 ;  Rembert  ».  Brown,  17  Ala.  667;  Horn  v.  Thomas,  19 
Ga.  270  ;  Wheat  v.  Moss,  16  Ark.  243.  So  where  a  supplemental  bill  has 
been  filed  :  Rogers  v.  Solomons,  17  Ga.  598. 

So  the  injunction  cannot  be  dissolved,  if  the  answer  be  evasive  and  ap- 
parently deficient  in  frankness,  candor,  or  precision :  Little  v.  Marsh,  2 
Ired.  Eq.  18;  Williams  v.  Hall,  1  Bland  Ch.  194;  Swift  v.  Swift,  13  Ga.' 
140 ;  Deaver  v.  EUer,  7  Ired.  Eq.  24.     Nor  if  it  be  contradictory :  Tong 


'  OF    INTERLOCUTORY    ORDERS.  697 

counter  affidavits,  or  may  wait  until  he  has  filed  his 
answer,  and  then  move  to  dissolve. 

V.  Oliver,  1  Bland  Ch.  199.  Nor  if  there  be  extreme  improbability  in  its 
allegations :  Moore  v.  Hylton,  1  Dev.  Eq.  429.  Nor  if  it  be  merely  upon 
information  and  belief:  Ward  v.  Van  Bokkelen,  1  Paige  100 ;  Apthorpe  v. 
Comstock,  Hopkins  143 ;  Poor  v.  Carleton,  3  Sumner  70 ;  Doub  v.  Barnes, 
1  Md.  Ch.  127 ;  Nelson  v.  Robinson,  1  Hempst.  464 ;  Calloway  v.  Jones, 
19  Ga.  277.  See,  however,  Ashe  v.  Johnson,  2  Jones  Eq.  49.  And,  more- 
over, where  the  equity  of  an  injunction  is  not  charged  to  be  in  the  know- 
ledge of  the  defendant,  and  the  defendant  merely  denies  all  knowledge  and 
belief  of  the  facts  alleged  therein,  the  injunction  will  not  be  dissolved  on 
the  bill  and  answer  alone :  Rodgers  v.  Rodgers,  1  Paige  426  ;  Quackenbush 
V.  Van  Riper,  Saxton  476  ;  Everly  v.  Rice,  3  Green  Ch.  553 ;  CoflFee  v. 
Newsom,  8  Ga.  444. 

An  injunction  may  be  partially  dissolved  in  accordance  with  the  case 
made  out  by  the  answer :  Edwards  v.  Ferryman,  18  Ga.  374  •,  or  it  may  be 
revived  after  a  dissolution  on  the  merits,  or  awarded  afresh  on  special  mo- 
tion, or  new  facts  stated  in  an  amended  or  supplemental  bill,  or  on  proof 
taken :  Tucker  v.  Carpenter,  1  Hemp.  440 ;  Rogers  v.  Solomons,  17  Ga. 
598  ;  but  see  France  v.  France,  4  Halst.  Ch.  619. 

In  general,  no  affidavits  can  be  read  in  contradiction  of  the  answer  de- 
nying the  equity  of  the  bill ;  Brown  v.  Winans,  3  Stockt.  267 ;  but  in  cer- 
tain excepted  cases^  as  nuisance,  waste,  and  trespass,  where  irreparable 
damage  might  ensue  upon  the  refusal  or  dissolution  of  the  injunction,  such 
affidavits  will  be  allowed,  and  the  continuance  of  the  injunction  will  be 
within  the  discretion  of  the  Court,  whether,  upon  the  whole  evidence,  more 
injury  will  be  done  to  the  complainant  by  withholding,  or  to  the  defendant 
by  granting  the  injunction:  Waring  r.  Cram,  1  Pars.  Eq.  523;  Smith  v. 
Cummings,  2  Id.  92 ;  Poor  v.  Carleton,  3  Sumn.  70 ;  Village  of  Sen.  Falls 
V.  Matthews,  9  Paige  504  ;  Lessig  v.  Langton,  Bright.  N.  P.  191 ;  see  Shrews- 
bury, &c.,  R.  R.  V.  London,  &c.,  R.  R..  3  M.  &  G.  70. 

In  cases  of  imminent  danger  of  injury  to  the  complainant,  a  temporary 
injunction  will  be  granted  on  filing  amendments  to  a  bill  after  appearance, 
but  the  injunction  will  be  accompanied  with  an  order  to  show  cause  why 
the  bill  should  not  be  amended,  and  why  the  injunction  should  not  be  con- 
tinued :  Hayes  ».  Heyer,  4  Sandf.  Ch.  485.  So  a  preliminary  injunction 
will  not  be  refused,  for  error  in  a  bill  which  is  amendable,  though  the 
amendment  has  not  been  actually'made,  as  in  the  case  of  a  bill  by  parties 
in  their  own  instead  of  in  a  corporate  capacity :  Packer  v.  Sunbury,  «Sbc., 
R.  R.,  19  Penn.  St.  211. 

The  common  injunction  having  been  dissolved  in  an  original  bill,  can- 
not be  obtained  as  of  course  on  an  amended  bill,  for  default  before  appear- 


698  ADAMs's    DOCTRINE    OF    EQUITY. 

If  the  motion,  either  to  grant  or  dissolve  the  injunction, 
is  heard  after  answer,  the  admissibility  of  affidavits  is  a 
questionable  point. 

If  the  answer  denies  the  plaintiff's  title,  affidavits  are 
not  admissible  to  support  such  title ;  or  in  other  words, 
the  title  will  not  be  tried  before  the  hearing. (/)  If, 
however,  documents  of  title  are  stated  in  the  bill,  and  the 
answer  merely  professes  ignorance  respecting  them,  they 
may  be  verified  by  affidavit;  but  this  liberty  does  not 

{/)  Manser  v.  Jenner,  2  H.  603 ;  Clapham  v.  White,  8  Ves.  36. 

ance :  Zuleuta  v.  Vinent,  14  Beav.  209  ;  contra,  Eyton  v.  Mostyn,  3  De  G. 
&  Sm.  518. 

In  general,  in  this  country,  no  injunction  can  be  obtained  without  no- 
tice.    The  Rule  in  U.  S.  Courts,  in  Equity,  No.  Iv.,  is  as  follows: — 

Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  proceedings  at 
law,  if  the  defendant  does  not  enter  his  appearance  and  plead,  demur,  or 
answer  to  the  same  within  the  time  prescribed  therefor,  by  those  rules,  the 
plaintiff  shall  be  entitled  as  of  course,  upon  motion  and  notice,  to  such  in- 
junction. But  special  injunctions  shall  be  grantable  only  upon  due  notice 
to  the  other  party  by  the  Court  in  term,  or  by  a  judge  thereof  in  vacation, 
after  a  hearing,  which  may  be  ex  parte,  if  the  adverse  party  does  not  appear 
at  the  time  and  place  ordered. 

But  in  Pennsylvania,  see  Rule  Ixxv. 

In  most  of  the  states,  the  complainant  is  also  obliged  to  give  bond  before 
an  injunction  can  issue  ;  and  in  Pennsylvania  the  Commonwealth  itself  has 
been  held  to  be  comprehended  within  a  statutory  provision  to  that  effect : 
Comm.  V.  Franklin  Canal  Co.,  21  Penn.  St.  117.  But  an  omission  to  give 
bond  is  not  a  ground  for  dismissing  an  injunction  bill :  Gueray  v.  Durham* 
11  Ga.  9.  An  injunction  directed  to  a  corporate  body,  is  binding  not  only 
on  the  corporation,  but  every  individual  member  :  Davis  v.  Mayor,  &c.,  of 
N.  Y.,  1  Duer  451.  Where  it  forbids  performance  of  any  corporate  act,  it 
is  violated  by  every  member  of  the  corporate  body,  by  whose  assent  or 
cooperation  the  act  so  forbidden  is  performed  ;  and,  every  such  member  is 
guilty  of  a  contempt,  for  Which  he  may  be  punished.  An  injunction  which 
forbids  a  corporation  to  make  a  particular  grant  is  violated  by  the  passage 
of  an  ordinance  or  resolution,  as  a  corporate  act,  which  by  its  terms  is 
meant  to  operate  as  the  gi-ant  which  is  prohibited.  Every  member,  there- 
fore, who  votes  for  the  adoption  of  such  an  ordinance,  commits  a  breach 
of  the  injunction,  and  is  guilty  of  a  contempt :  Id.  See  too,  Rorke  v,  Russell, 
2  Lans.  (N.  Y.)  242. 


OF    INTERLOCUTORY    ORDERS.  699 

extend  to  matters  of  fact.(^)  If  the  answer  does  not 
deny  the  title,  the  question  arises,  whether  affidavits  can 
be  read  against  it  in  proof  of  waste,  or  of  acts  analogous 
to  waste,  e.  g.,  mismanagement  and  exclusion.  On  this 
point  the  rule  is,  that  if  affidavits  have  been  filed  before 
the  answer,  the  Court  will  read  them,  and  also  read  any 
further  affidavits  filed  after  the  answer,  whether  the 
injunction  was  obtained  or  not;  that  is,  it  will  try  the 
question  of  waste,  though  not  that  of  title,  on  affidavit 
against  the  answer.  But  if  no  affidavit  has  been  filed 
before  the  answer  so  as  to  give  a  locus  standi  for  a  hear- 
ing on  affidavit,  affidavits  filed  after  the  answer  cannot 
be  read.  (A) ^ 

*The  grant  of  the  interlocutory  injunction  is    r^o^-Y-i 
discretionary  with  the  Court;  and  depends  on 
the  circumstances  of  each  case,  and  on  the  degree  in 
which  the  defendant  or  the  plaintiff  would  respectively  be 
prejudiced  by  the  grant  or  refusal. 

K  the  mischief  done  to  the  plaintiff,  assuming  him  to 
have  a  right,  by  a  continued  infringement,  is  a  mere 
matter  of  profit  and  loss,  and,  therefore,  susceptible  of 
compensation,  the  Court  will  also  consider  what  may  be 
the  consequences  to  the  defendant,  assuming  him  to  be 
right,  of  granting  an  injunction ;  and  even  if  the  antici- 
pated act  would  destroy  the  property,  and  affords,  there- 
fore, primd  facie  a  fair  reason  to  interfere,  yet  the  Court 
will  not  act  as  a  mere  matter  of  course,  but  will  consider 

{g)  Barrett  v.  Tickell,  Jac.  156  ;  Morgan  v.  Goode,  3  Meriv.  lOl;  Ord  v. 
White,  3  Beav.  357;  Castellain  v.  Blumenthal,  12  Sim.  47;  Edwards  v. 
Jones,  1  Ph.  501. 

(A)  Jefferys  v.  Smith,  IJ.  &  W.  300 ;  Smythe  v.  Smythe,  1  Sw.  252 ; 
Lloyd  V.  Jenkins,  4  Beav.  230 ;  Gardner  v.  McCutcheon,  Id.  534  ;  Manser 
r.  Jenner,  2  Hare  600. 

1  See  Kinsler  v.  Clarke,  2  Hill  Ch,  620. 


700  Adams's  doctrine  of  equity. 

whether  it  is  not  possible  that  still  greater  damage  would 
be  caused  to  the  defendant  by  an  injunction.  (^)  If,  how- 
ever, an  injunction  is  for  such  cause  refused,  and  the 
subject-matter  of  the  suit  is  one  of  profit  and  loss,  an  in- 
termediate course  is  often  adopted,  and  the  defendant  is 
directed  to  keep  an  account,  that  so,  if  the  plaintiff  should 
establish  his  right,  he  may  ascertain  at  once  the  compen- 
sation due  for  its  infringement.  (^) 

The  injunction,  if  granted,  is  for  intermediate  protec- 
tion only,  and  will  be  cautiously  excluded  from  any 
further  effect.  If,  therefore,  the  subject-matter  of  the 
suit  be  not  of  equitable  jurisdiction,  the  legal  right  must 
be  tried  as  speedily  as  possible ;  and  the  Court  is  bound, 
even  though  not  requested  by  the  parties,  to  accompany 
its  order  by  a  provision  to  that  effect.  (/) 

In  the  case  of  stock  which  may  be  transferred  with 
great  facility,  a  more  speedy  protection  existed  under  the 
old  practice,  by  writ  of  distringas  out  of  the  Exchequer, 
porn-j  and  ^service  of  it  on  the  bank.  The  distringas 
was  not  in  strictness  binding  on  the  bank,  but 
the  practice  was  to  give  notice  to  the  party  serving  it,  if 
any  application  were  made  for  transfer,  and  to  delay  the 
transfer  for  a  limited  time,  during  which  an  injunction 
might  be  obtained.  On  the  transfer  of  the  Exchequer 
jurisdiction  to  the  Court  of  Chancery,  a  similar  remedy 
was  given  by  distringas  issuable  out  of  that  Court.  And 
a  further  remedy  was  also  given  by  a  restraining  order  of 
tlve  Court,  to  be  summarily  made  on  petition  or  motion 
without  bill  filed,  and  to  continue  in  force  until   dis- 

(f)  Hilton  V.  Granville,  1  Cr.  &  P.  283. 
(Ar)  Bacon  ».  Jones,  4  M.  &  C.  436. 

(/)  Harman  v.  Jones,  1  Cr.  &  P.  299 ;  Ansdell  v.  Ansdell,  4  M.  &  C. 
449 ;  Bacon  v.  Jones,  Id.  436  ;  Few  v.  Guppy,  1  Id.  507. 


OF    INTERLOCUTORY    ORDERS.  701 

charged,  imperatively  restraining  the  bank,  or  any  pub- 
lic company,  from  permitting  a  transfer  or  paying  a  divi- 
dend, (m) 

The  interlocutory  writ  against  proceeding  at  law,  tech- 
nically termed  the  common  injunction,  is  obtainable  by 
the  plaintiff  on  a  motion  of  course,  if  the  defendant  fail 
to  appear  within  four  days  after  the  subpoena  has  been 
served,  or  to  answer  the  bill  within  eight  days  after  his 
appearance. 

K  the  common  injunction  is  obtained  before  a  declara- 
tion is  delivered,  it  stays  all  the  proceedings  at  law.  If 
afterwards,  it  only  restrains  execution,  and  the  plaintiff 
at  law  is  at  liberty  to  proceed  to  judgment.  But  the 
plaintiff  in  equity,  on  a  second  motion  supported  by  an 
affidavit,  that  he  believes  the  answer  will  afford  discovery 
material  to  his  defence,  may  obtain  a  further  order  ex- 
tending it  to  stay  trial.  And  it  would  seem,  though  not 
free  from  doubt,  that,  on  the  answer  coming  in,  this  fur- 
ther order  may  be  discharged  independently  of  the  origi- 
nal injunction,  (t?) 

If  the  defendant  is  diligent  enough  to  prevent  the  com- 
mon injunction  from  issuing  by  filing  a  sufficient  answer 
within  the  time  allowed,  the  plaintiff  must  move  specially 
on  the  merits  confessed  in  the  answer.  If,  on  the  other 
hand,  the  proceedings  at  law  are  such  as  to  afford  no  op- 
portunity of  ^obtaining  the  common  injunction,  a  r*qc;Q-| 
special  injunction  may  be  obtained  on  affidavit 
before  answer;  but,  except  under  very  special  circum- 
stances, the  Court  is  unwilling  to  grant  it.  [o) 

(ot)  5  Vict,  c,  5,  8.  4  &  5  ;  Orders  of  November,  1841 ;  Re  Hertford,  1 
Hare  584;  1  Ph.  129;  Id.  203  ;  2  Dan.  Ch.  P.,  c.  33. 

(n)  Earnshaw  v.  Thornhill,  18  Ves.  485 ;  Rawson  v.  Samuel,  1  Cr.  &,  P. 
167. 

(o)  Drummond  r.  Pigou,  2  M.  &  K.  168 ;  Bailey  v.  Weston,  7  Sim.  666. 


702  ADAMS's    DOCTRINE    OF    EQUITY. 

As  soon  as  the  defendant  has  put  in  a  full  answer  he 
may  move  to  dissolve  the  injunction.  And  it  is  then  a 
question  for  the  discretion  of  the  Court  whether,  on  the 
facts  disclosed  by  the  answer,  or  as  it  is  technically 
termed,  on  the  equity  confessed,  the  injunction  shall  be 
at  once  dissolved,  or  whether  it  shall  be  continued  to  the 
hearing. 

The  general  principle  of  decision  is,  that  if  the  answ^er 
shows  the  existence  of  an  equitable  question,  such  ques- 
tion shall  be  preserved  intact  until  the  hearing.  But  the 
particular  mode  of  doing  this  is  discretionary  with  the 
Court. 

If  the  plaintiff  is  willing  to  admit  the  demand  at  law, 
and  to  give  judgment  in  the  action,  but  is  unwilling  to 
pay  money  which  it  might  be  difficult  to  recover  back,  he 
may  protect  himself  by  paying  it  into  Court,  to  be  there 
taken  care  of,  until  the  suit  is  decided.  If  he  desires  to 
try  his  liability  at  law,  the  injunction  will  be  dissolved 
with  liberty  to  apply  again  after  verdict.  But,  unless  the 
defendant's  right  at  law  be  admitted,  he  will  not  be  re- 
strained from  trying  it,  except  where  it  is  obvious  on  his 
own  answer  that  the  relief  sought  will  be  decreed  at  the 
hearing.  If  he  has  already  tried  his  right  at  law,  and 
obtained  judgment,  he  will  be  restrained  from  issuing  exe- 
cution, if  it  appear  that  there  is  an  equitable  question  to 
be  decided,  before  the  Court  can  safely  allow  the  matter 
to  be  disposed  of  elsewhere,  (jy) 

If  the  injunction  be  against  a  proceeding  before  some 
other  tribunal,  and  not  before  the  Courts  of  common  law, 
it  is  not  in  the  first  instance  obtained  as  of  course,  but 
must  be  the  subject  of  a  special  application.  (§') 

[p)  Playfair  v.  Thames  Junction  Railway  Company,  1  R.  C.  640 ;  Bar- 
nard V.  Wallis,  Cr.  &  P.  85  ;  Bentinck  v.  Willink,  2  Hare  11. 

(g)  Anon.,  1  P.  Wms.  301 ;  Macnamara  v.  Macquire,  1  Dick.  223. 


OF    INTERLOCUTORY    ORDERS.  703 

*V.  The  writ  ofne  exeat  (r)  is  a  writ  to  restrain  ^  „   ^^ 

r  3601 
a  person  from  quitting  the  kingdom  without  the   ^         J 

King's  license,  or  the  leave  of  the  Court.  It  is  a  high  pre- 
rogative writ,  and  was  originally  applicable  to  purposes  of 
state  only,  hut  is  now  extended  to  private  transactions, 
and  operates  in  the  nature  of  equitable  bail.^  It  is  grant- 
able  wherever  a  present  equitable  debt  is  owing,  which  if 
due  at  law  would  warrant  an  arrest,  and  also  to  enforce 
arrears  of  alimony  in  aid  of  the  Spiritual  Court,  in  respect 
of  the  inability  of  that  Court  to  require  bail.  (5)"     It  may 

(r)  2  Dan.  Ch.  P.,  c.  34. 

(«)  Jackson  v.  Petrie,  10  Ves.  164 ;  Gardner  v. ,  15  Ves.  444  ;  Blaydes 

r.  Calvert,  2  Jac.  &  W.  211 ;  Whitehouse  v.  Patridge,  3  Sw.  365;  Sealy  v. 
Laird,  Id.  368  ;  Pearne  v.  Lisle,  Amb.  75. 

^  See,  in  accordance,  Dunham  v.  Jackson,  1  Paige  629  ;  Mitchell  r. 
Bunch,  2  Id.  606  ;  Johnson  v.  Clendenin,  5  Gill  &  J.  463.  The  district 
judges  of  the  courts  of  the  United  States  have  no  authority  to  issue  writs 
of  ne  exeat:  Gernon  v.  Boecaline,  2  Wash.  C.  C.  130. 

^  A  writ  of  ne  exeat  cannot  be  granted,  unless,  Ist,  there  be  a  precise 
amount  of  debt  due  ;  2d,  it  be  on  an  equitable  demand,  on  which  the  plain- 
tiff cannot  sue  at  law,  except  in  cases  of  account,  and  a  few  others  of  con- 
current jurisdiction;  and  third,  the  defendant  be  about  to  quit  the  country, 
proved  by  aflBdavits  as  positive  as  those  required  to  hold  to  bail  at  law : 
Rhodes  v.  Cousins,  6  Randolph  188;  "W^allace  v.  Duncan,  13  Ga.  41.  In 
Alabama  and  New  York,  a  certain  sura  need  not  be  sworn  to :  Lucas  v. 
Hickman,  2  Stewart  111 ;  Thorn  v.  Halsey,  7  Johns.  Ch.  189. 

If  the  party  against  whom  a  final  decree  is  made,  intends  to  remove  be- 
yond the  jurisdiction  of  the  court,  before  the  decree  can  be  enforced  by 
execution,  a  ne  exeat  will  be  granted  :  Dunham  v.  Jackson,  1  Paige  629. 

Where  a  wife  had  filed  a  bill  for  alimony  against  her  husband,  and  it 
appeared  that  he  had  abandoned  her,  without  any  support,  and  threat€ned 
to  leave  the  state,  the  court,  on  the  petition  of  the  wife,  granted  a  writ  of 
ne  exeat  republica  against  the  husband :  Denton  v.  Denton,  1  Johns.  Ch. 
364. 

A  suit  in  Chancery,  by  a  judgment  and  execution*  creditor,  to  reach 
equitable  interests,  things  in  action,  and  effects,  is  an  equitable  and  not  a 
legal  demand,  and  the  defendant  may  be  arrested  on  a  ne  exeat  therein  : 
EUingwood  v.  Stevenson,  4  Sandf.  Ch.  366  ;  see  also  Buford  v.  Francisco,  3 
Dana  68." 

But  the  demand  must  be  an  equitable  one,  or  within  one  of  the  excep- 


704  ADAMS'S    DOCTRINE    OF    EQUITY. 

be  granted  where  there  is  a  concurrent  jurisdiction  at  law, 
e.  g.,  on  bills  for  an  account,  or  for  specific  performance  ;^ 
but  not  where  the  claim  is  of  legal  cognisance  alone.  (^) 

The  writ  is  issuable  if  the  defendant  is  within  the 
jurisdiction,  although  his  domicile  may  be  abroad,  (m)  but 
not  if  the  plaintiff  be  himself  resident  abroad. (z^)^  In 
general  it  can  only  be  granted  after  a  bill  is  filed,  and  it  is 
usual,  though  not  indispensable,  to  ask  it  by  the  prayer,  [w] 
It  is  applied  for  ex  parte  by  petition  or  motion  f  and  the 
application  must  be  supported  by  affidavit,  stating  the 
amount  of  the  debt,  and  stating  that  the  defendant  intends 
to  go  abroad,  or  his  threats  or  declarations  to  that  effect, 
or  facts  evincing  his  intention,  and  stating  also  that  the 
debt  will  be  endangered  by  his  so  doing.  (:r) 

(0  Boehm  v.  Wood,  T.  &  R.  332 ;  Raynes  v.  Wyse,  2  Meriv.  472 ;  Morris 
V.  McNeil,  2  Russ.  604 ;  Jenkins  v.  Parkinson,  2  M.  &  K.  5. 

(m)  Howden  v.  Rogers,  1  Ves.  &  B.  129 ;  Flack  v.  Holm,  1  J.  &  W.  415. 
(»)  Smith  V.  Nethersole,  2  R.  &  M.  450. 

(tc)  Collinson  v. ,  18  Ves.  353  ;  Earned  v.  Laing,  13  Sim.  255. 

(«)  Rico  V.  Gualtier,  3  Atk.  501 ;  Hyde  v.  Whitfield,  19  Ves.  342;  Col- 

tional  cases  of  concurrent  jurisdiction.  The  writ  cannot  be  granted  for  a 
debt  founded  on  a  promissory  note  not  due  :  Cox  v.  Scott,  5  Har.  &  J.  384. 
Nor  where  the  defendant  is  an  executor  or  administrator,  and  there  is  no 
affidavit  that  assets  have  come  to  his  hands :  Smedburg  v.  Mark,  6  Johns. 
Ch.  138 ;  see  also,  Seymour  v.  Hazard,  1  Id.  1  ;  Brown  v.  Haff,  5  Paige 
235  ;  Williams  v.  Williams,  2  Green's  Ch.  130;  Hannahan  v.  Nichols,  17 
Ga.  77. 

^  See  Mitchell  V.  Bunch,  2  Paige  605  ;  Porter  v.  Spencer,  2  Johns.  Ch. 
169  ;  Brown  v.  Haff,  5  Paige  235. 

*  In  New  York  it  is  held  that  citizens  of  other  states  and  foreigners  are, 
while  sojourning  there,  liable  to  a  writ  of  ne  exeat.  The  Court  determines 
the  amount' in  which  the  defendants  shall  be  held  to  bail,  and  the  sheriff 
must  take  the  bond  in  the  amount  directed  as  the  penal  sum  :  Gilbert  v. 
Colt,  1  Hopkins  496.  And  it  may  issue  on  demands  arising  abroad  :  Wood- 
ward V.  Schatzell,  3  Johns.  Ch.  412;  Mitchell  v.  Bunch,  2  Paige  606. 

^  It  seems  that  a  writ  of  ne  exeat  will  not  be  granted  on  petition  and 
motion  only,  without  a  bill  previously  filed :  Mattocks  v.  Tremain,  3  Johns. 
Ch.  75. 


OF    INTERLOCUTORY    ORDERS.  705 

The  writ  is  directed  to  the  sheriff,  and  requires  him  to 
take  security  from  the  defendant  in  a  specified  amount 
that  he  will  not  go  beyond  seas,  or  into  Scotland,  without 
leave  *of  the  Court,  and  in  case  he  refuse  to  give  r*o^i-| 
such  security,  to  commit  him  to  safe  custody.  (^)^ 
If  a  capture  be  made  under  the  writ,  the  defendant  can- 
not obtain  his  discharge  without  giving  such  security, 
either  by  bond  with  sureties,  or  by  deposit  or  otherwise, 
as  shall  satisfy  the  sheriff.  (0)  An  application  to  discharge 
the  wa-it,  if  grounded  on  an  irregularity  or  impropriety  in 
the  grant,  may  be  made  on  affidavit.  («)  But  if  it  be  on 
the  merits,  viz.,  because  the  defendant  is  not  going  out  of 
the  jurisdiction,  or  because  the  plaintiff  has  no  case,  the 
answer  must  be  first  put  in.(i)^ 

linson  v. ,  18  Id.  353 ;  Tomlinson  v.  Harrison,  8  Id.  33 ;  Stewart  r. 

Graham,  19  Id.  313. 

(y)  Bernal  v.  Donegal,  11  Ves.  43. 

(z)  Boehm  v.  Wood,  T.  &  R.  340. 

(a)  Grant  v.  Grant,  3  Russ.  598. 

(6)  Russell  v.  Ashby,  5  Ves.  98 ;  Jones  v.  Alephsin,  16  Id.  470 ;  Leo  r. 
Lambert.  3  Russ.  417. 

'  See,  on  the  nature  of  the  security  and  the  conditions  of  the  defendant's 
discharge,  McNamara  ».  Dwyer,  7  Paige  239;  Mitchell  ».  Bunch,  2  Id. 
606  ;  Ancrum  v.  Dawson,  McMullan's  Eq.  405  ;  O'Connor  v.  Debraine,  3 
Edw.  Ch.  230 ;  Cowdin  v.  Cram,  3  Edw.  Ch.  231 ;  and,  as  to  the  damages 
recoverable,  see  Burnap  v.  Wight,  14  111.  301. 

*  See  Nixon  v,  Richardson,  4  Dessaus.  108. 


45 


706  ADAMS's    DOCTRINE    OF    EQUITY. 


[*362]  *CHAPTER    VI. 

OF    EVIDENCE.^ 

The  next  regular  step  after  replication  is,  that  th^  parties 
should  prove  their  case  by  evidence. 

The  rules  of  evidence  are  the  same  in  equity  as  at  law. 
Each  litigant  must  prove  by  legitimate  evidence  so  many 
of  the  facts  alleged  in  his  pleadings  as  are  material  to  the 
decree  asked  or  resisted,  and  are  not  admitted  in  his  suit 
by  his  opponent. 

I.  They  must  be  facts  material  to  the  decree. 

In  reference  to  this  doctrine,  it  is  important  to  observe 
that  the  decree  asked  or  resisted,  in  the  sense  in  which 
the  expression  is  here  used,  is  not  necessarily  one  for  the 
whole  relief  sought,  but  is  merely  that  decree  which,  ac- 
cording to  the  practice  of  the  Court,  can  be  made  in  the 
first  instance.  («)  If,  for  example,  a  bill  be  filed  for  the 
administration  of  assets,  or  for  the  specific  performance  of 
an  agreement  for  sale,  the  decree  in  the  first  case  is  in  the 
first  instance  for  an  account  of  assets,  or  for  an  inquiry  as 
to  the  parties  interested  therein ;  and,  in  the  second  case, 

(a)  Infra,  Decree. 

^  See  upon  this  subject,  generally,  Greenleafs  Evidence,  vol.  iii.,  part 
vi.,  "  Of  Evidence  in  Proceedings  in  Equity ;"  Daniel's  Chan.  Prac,  c. 
xxi.  And  also  a  valuable  collection  of  American  cases  on  the  law  of  Equity 
Evidence,  in  the  Appendix  to  the  13th  vol.  of  McKinley  and  Lescure's  Law 
Library. 


OF    EVIDENCE.  707 

for  an  inquiry  as  to  the  validity  of  the  vendor's  title. 
The  plaintiff  is  not  bound,  therefore,  before  the  hearing, 
to  prove  every  allegation  in  such  bills,  but  should  confine 
himself  in  the  one  case  to  establish  his  prima  facie  right 
by  proof  of  his  debtor  relationship,  and  in  the  other  by 
proof  of  the  agreement,  or  of  such  other  facts  as  will  lay 
a  foundation  *for  the  inquiry. (^)  And  in  like  r^ggg"! 
manner,  the  defendant's  evidence  should  be  con- 
fined to  disproving  those  facts. 

II.  They  must  be  facts  not  admitted  in  the  suit  by  his 
opponent. 

K  any  facts  are  made  the  subject  of  express  admission 
in  the  suit,  or  are  admitted  by  the  pleadings  as  true,  and 
the  party  making  the  admission  is  competent  to  do  so,  it 
is,  of  course,  unnecessary  to  prove  |them  by  evidence. 
But  admissions  by  an  Infant,  however  made,  Avhether  by 
express  agreement,  or  by  his  bill  as  plaintiff,  or  his  answer 
as  defendant,  or  by  his  omission  as  plaintiff  to  reply  to  an 
answer,  are  unavailing,  and  the  facts  must  be  proved  by 
evidence.'  And  admissions  by  husband  and  wife  cannot 
bind  the  wife's  inheritance,  (c) 

The  rules  with  respect  to  admissions  by  answer  have 
been  already  explained  under  the  head  of  Discovery,^ 

(6)  Law  V.  Hunter,  1  Russ.  100 ;  Tomlin  v.  Tomlin,  1  Hare  240. 
(c)  Evans  r.  Cogan,  2  P.  Wms.  449. 


1  See  3  Greenleafs  Evidence,  s.  278.  An  infant,  however,  on  coming  of 
age,  may  be  permitted  to  file  another  answer  ;  and  if  he  unreasonably  de- 
lays to  apply  for  leave  to  do  this,  he  will  be  taken  to  have  confirmed  his 
former  answer,  and  it  may  be  read  against  him  :  Id.  s.  279 ;  see  Watson 
r.  Godwin,  4  Md.  Ch.  25. 

*  A  direct  admission  contained  in  the  answer  of  a  defendant,  is,  of 
course,  always  evidence  against  him  :  3  Greenl.  Ev.,  s.  277  ;  even  in  a  sub- 
sequent suit :  Royal  r.  McKenzie,  25  Ala.  363.  Though  it  is  otherwise 
where  it  is  made  upon  information  merely,  and  not  upon  information  and 
belief :  Id.  s.  282.     Where  an  answer  admits  a  fact  charged,  but  sets  up 


708  ADAMS's    DOCTRINE    OF    EQUITY. 

viz.,  that  the  answer  of  the  defendant  is  evidence  against 
himself  but  not  against  a  co-defendant ;  that  the  answer, 
— ^ 

another  fact  in  avoidance,  the  fact  admitted  is  established  ;  hut  the  fact  in 
avoidance  must  be  proved:  Clements  v.  Moore,  6  Wallace  (U.  S.)  299. 
Silence  alone  will  not  bg  construed  to  be  an  admission,  as  to  matters 
not  charged  to  be  within  the  knowledge  of  the  defendant :  Lynn  v.  Boiling, 
14  Ala.  753.  And  a  complainant  cannot,  in  general,  rely  merely  upon 
admissions  in  the  answer  as  the  ground  for  relief,  without  having  by  his 
bill  made  them  an  integral  part  of  his  case :  Small  v.  Owings,  1  Md.  Ch. 
363. 

The  admissions  in  the  answer  of  one  defendant  cannot  usually  be  made 
evidence  to  affect  his  co-defendants  :  3  Greenl.  Ev.,  §  283  ;  ante  20,  note ; 
Briesch  v.  McCauley,  7  Gill  189  ;  Ilitt  v.  Ormsbee,  12  111.  166  ;  Whiting  v. 
Beebe,  7  Eng.  (Ark.)  421 ;  Glenn  v.  Grover,  3  Md.  212;  Farley  v.  Bryant, 
'?2  Maine  474;  Gilmore  v.  Patterson,  36  Id.  544;  Blakeney  v.  Ferguson, 
14  Ark.  641 ;  Lenox  v.  Notrebe,  1  Ilempst.  251 ;  but  see  Miles  v.  Miles,  32 
N.  H.  147.  Where,  however,  partnership  or  privity  is  established  between 
the  defendants,  or  the  answer  of  one  is  referred  to  or  relied  on  by  the  rest, 
it  becomes  evidence  against  all :  Greenl.  Ev.,  ut  supr. ;  Clayton  v.  Thomp- 
son, 13  Ga.  206  ;  Van  Reimsdyk  v.  Kane,  1  Gallis.  630  ;  Chase  v.  Manhardt, 
1  Bland  336  ;  Whiting  v.  Beebe,  7  Eng.  (Ark.)  421 ;  Osborn  v.  U.  S.  Bank, 
9  Wheat.  738  ;  Judd  v.  Seaver,  8  Paige  548  ;  Dexter  v.  Arnold,  3  Sumn. 
152;  though  see  Winn  v.  Albert,  2  Md.  Ch.  169 ;  Gilmore  v.  Patterson,  36 
Maine  544;  Blakeney  v.  Ferguson,  14  Arkansas  641.  So,  where  the  right 
of  the  complainant  to  a  decree  against  one  defendant  is  only  prevented 
from  being  complete  by  some  questions  between  a  second  defendant  and 
the  former,  he  may  read  the  answer  of  the  second  defendant  for  that  pur- 
pose:  Whiting  V.  Beebe,  7  Eng.  (Ark.)  421.  The  joint  answer  of  a  hus- 
band and  wife  may  be  read  against  the  wife  as  to  her  separate  estate : 
Clive  V.  Carew,  1  John.  &  H.  207. 

On  the  other  hand,  the  answer  of  a  defendant,  so  far  as  it  is  responsive 
to  the  bill,  is  evidence  for  him,  and  is  conclusive  in  general,  unless  contra- 
dicted by  two  witnesses,  or  one  witness  corroborated  more  or  less  strongly 
by  circumstances,  according  to  the  nature  of  the  case:  ante  21,  note; 
Horton's  App.,  13  Penn.  St.  67;  Ringgold  v.  Bryan,  3  Md.  Ch.  488  ;  Bank 
U.  S.  V.  Beverly,  1  How.  (U.  S.)  134;  Carpenter  v.  Prov.,  &c.,  Ins.  Co.,  4 
Id.  185  ;  West  V.  Flanagan,  4  Md.  36  ;  Brooks  v.  Thomas,  8  Id.  367  ;  Miles 
V.  Miles,  32  N.  H.  147  ;  Busbee  v.  Littlefield,  33  Id.  76  ;  Williams  v.  Philpot, 
19  Ga.  567;  Stouffer  v.  Machen,  16  111.  553  ;  Dyer  v.  Bean,  15  Ark.  519 ; 
Autrey  v.  Cannon,  11  Texas  110;  Calkins  v.  Evans,  5  Ind.  441  ;  Turner  v. 
Knell,  24  Md.  55 ;  Clark  v.  Hackett,  1  Cliff.  C.  C.  269 ;  Delano  v.  Winsor, 
Id.  501  ;  Bird  v.  Styles,  3  Green  (N.  J.)  297  ;  Willdey  v.  Webster,  42  111. 


OF    EVIDENCE.  709 

if  replied  to,  cannot  be  evidence  in  favor  of  the  defend- 
ant, unless  where  a  positive    denial  is  opposed  to    the 

108  :  Blow  V.  Gage,  44  Id.  208 ;  De  Hart  v.  Baird,  4  Green  (N.  J.)  423 ; 
Bent  r.  Smith,  20  N.  J.  Eq.  199.  But  this  must  be  taken  with  some 
qualifications.  Circumstances  alone,  independent  of  any  direct  proof,  it 
is  said,  may  often  justify  and  require  a  decree  against  the  answer :  White 
V.  Crew,  16  Ga.  416.  It  is  not  material  in  respect  to  the  conclusiveness  of 
the  answer,  that  the  equity  of  the  complainant's  bill  is  grounded  on  allega- 
tions of  fraud :  McDonald  v.  McLeod,  1  Ired.  226  ;  Murray  v.  Blatchford, 
1  Wend.  583;  Dilly  c.  Bernard,  8  Gill  &  John.  171 ;  Eberly  v.  Groff,  21 
Penn.  St.  251  ;  Morris  &  Essex  R.  R.  Co.  v.  Blair,  1  Stockt.  635 ;  or  that 
proof  upon  the  denial  of  the  allegations  of  the  bill  is  in  the  reach  of  the 
defendant,  but  is  inaccessible  to  the  complainant:  Thompson  v.  Diflfen- 
derfer,  1  Md.  Ch.  487.  So  an  answer  responsive  to  the  charging  part  of 
the  bill,  or  to  allegations  as  to  the  motives  and  views  under  which  acts 
have  been  done,  must  be  overborne  by  the  same  testimony  as  in  other 
cases :  Smith  r.  Clark,  4  Paige  368;  Glenn  v.  Grover,  3  Md.  212;  but  see 
Lea's  Ex'rs.  v.  Eidson,  9  Gratt.  277.  If  the  bill  is  supported  by  the  testi- 
mony of  a  single  witness  only,  and  the  defendant  by  his  answer  positively, 
clearly  and  precisely  denies  the  allegations  it  contains,  the  Court  will  not 
make  a  decree,  but  will  dismiss  the  bill.  But  if  there  is  anything  to  cor- 
roborate the  testimony  of  the  witness,  as,  for  example,  letters  of  the  de- 
fendant, it  will  be  suflScient  to  turn  the  scale.  See  Jordan  v.  Money,  5 
H.  L.  Cas.  185,  217-218;  Smith  v.  Kay,  7  Id.  760;  Brittin  r.  Crabtree,  20 
Ark.  309  ;  Pusey  v.  Wright,  31  Penn.  St.  287. 

This  general  rule,  however,  is  open  to  some  exceptions.  Thus  it  is  the 
prevailing  doctrine  in  the  United  States  that  it  is  not  applicable  to  an  un- 
sworn answer,  though  an  answer  under  oath  is  not  required  by  bill,  the 
rule  being  otherwise  in  England.  See  3  Greenl.  286,  note  ;  Union  Bank 
r.  Geary,  5  Peters  99  ;  Patterson  v.  Gaines,  6  How.  (U.  S.)  586  ;  Bartlett 
V.  Gale,  4  Paige  503 ;  Willis  v.  Henderson,  4  Scamm.  13 ;  Tomlinson  v. 
Lindley,  2  Carter  (Ind.)  569 ;  McLard  v.  Linnville,  10  Humph.  163 ;  Tag- 
gert  r.  Bolden,  10  Md.  104;  Wilson  v.  Towle,  36  N.  H.  129;  Wallwork  v 
Derby,  40  III.  527  ;  Hyer  v.  Little,  20  N.  J.  Eq.  443 ;  Willenborg  v.  xMurphy, 
36  111.  344;  but  see'Clements  v.  Moore,  6  Wall.  (U.  S.)  299  ;  Story  Eq.  PL, 
§875,  &c. ;  and  it  is  so  expressly  provided  by  statutory  and  judicial  regu- 
lation in  some  states :  Greenleaf,  ut  sup.  See  Bingham  t".  Yeomans,  10 
Cush.  58.  By  statute,  in  Iowa,  a  sworn  answer  does  not  make  other  or 
greater  proof  necessary  than  if  the  answer  was  not  verified  by  oath : 
Mitchell  I'.  Moore,  24  Iowa  394.  It  has,  therefore,  been  held  that  the 
answer  of  a  corporation  under  seal  only  cannot  be  relied  on  as  evidence 
in  its  favor,  as  though  it  were  on  oath :  Lovett  v.  Steam,  &c.,  Ass.,  6  Paige 


710  ADAMs's     DOCTRINE    OF     EQUITY. 

testimony  of  a  single  witness,  or  where  the  question  is  as 
to  costs  alone  ;  and  that  the  plaintiff  does  not,  by  reading 

54;  McLard  v.  Linnville,  10  Humph.  163  ;  Maryl.,  &c.,  Co.  v.  Wingert,  8 
Gill  170:  State  Bank  v.  Edwards,  20  Ala.  512;  contra,  Bayard  v.  Ches.  & 
Del.  Co.,  cited  3  Bland  165.  In  Haight  v.  Morris  Aqueduct,  4  Wash.  C.  C. 
601,  however,  such  an  answer  was  held  sufficient  to  prevent  the  granting 
of  an  injunction  ;  and  see  Carpenter  v.  Prov.,  &c..  Insurance  Co.,  4  How. 
(U.  S.)  218  ;  and  in  general  it  will  put  in  issue  allegations  to  which  it  is 
responsive,  and  throw  on  the  complainant  the  burden  of  proving  them  : 
Bait.  &  Ohio  R.  R.  Co.  ?;.  AV heeling,  13  Gratt.  40;  Taggert  v.  Bolden,  10 
Md.  104.  The  effect  of  an  answer  under  oath  to  an  original  bill  calling 
for  an  answer  under  oath,  cannot  be  avoided  by  the  filing  of  an  amended  bill 
waiving  the  oath :  Wylder  v.  Crane,  53  111.  490.  In  order  to  enable  the 
defendant  to  claim  the  protection  of  the  general  rule,  moreover,  the  facts 
stated  in  the  answer  must  be  responsive  to  the  allegations  and  interrogatories 
of  the  bill,  and  the  denial  made  must  be  positive  and  distinct,  not  evasive  or 
illusory  :  Wakeman  v.  Grover,  4  Paige  23  ;  Lucas  v.  Bank  of  Darien,  2 
Stew.  (Ala.)  280;  N.  E.  Bank  «.  Lewis,  8  Pick.  113;  Philips  v.  Richard- 
on,  4  J.  J.  Marsh.  213  ;  Cocke  v.  Trotter,  10  Yerg.  213  ;  O'Brien  v.  Elliott, 
15  Maine  125 ;  Buck  v.  Swazey,  35  Id.  42 ;  Smith  v.  Kincaid,  10  Humph. 
73;  Jacks  V.  Nichols,  1  Seld.  (N.  Y.)  178  ;  Stevens  v.  Post,  1  Beas.  408; 
Coleman  v.  Rose,  46  Penn.  St.  184 ;  Wells  v.  Houston.  37  Verm.  247;  see  ante, 
356,  note.  So  the  defendant  cannot  rely  upon  his  statements  of  matters  of 
defence,  though  in  form  responsive,  but  must  prove  them  in  the  ordinary 
way :  Hagthorp  v.  Hook,  1  Gill  &  John.  272 ;  Paynes  v.  Coles,  1  Munf. 
373;  Walton  v.  Walton,  2  Benn.  (Mo.)  376;  ante,  356,  note;  Gilbert  v. 
Mosier,  11  Iowa  326.  A  further  qualification  is,  that  where  the  facts 
stated  or  denied  in  the  answer  could  not  be  by  possibility  within  the  per- 
sonal knowledge  of  the  defendant,  as  in  the  case  of  an  executor  or  heir,  or 
where  stated  or  denied  only  upon  information  and  belief,  or  by  way  of  in- 
ference from  facts  not  particularly  stated,  the  same  amount  of  countervail- 
ing proof  is  not  required :  Combs  v.  Boswell,  1  Dana  474  ;  Lawrence  v. 
Lawrence,  4  Bibb  358  ;  Harlan  v.  Wingate's  Adm.,  2  J.  J.  Marsh.  138  ; 
Carneal's  Heirs  v.  Day,  Litt.  Sel.  Cas.  492 ;  Knickerbacker  v.  Harris,  1 
Paige  209 ;  Drury  v.  Conner,  6  Har.  &  Johns.  288  ;  Pennington  v.  Git- 
tings,  2  Gill  &  John.  208  ;  Clark's  Adm.  v.  Van  Reimsdyk,  9  Cranch  153  ; 
Paulding  v.  Watson,  21  Ala.  279  ;  Copeland  v.  Crane,  9  Pkk.  73.  And, 
on  the  other  hand,  where  a  bill  was  filed  to  set  aside  a  deed  as  fraudulent 
against  creditors,  and  it  was  charged  in  the  bill  that  the  consideration  was 
not  paid,  it  is  not  satisfactory  that  the  defendant  relies  upon  his  answer,  if 
there  are  suspicious  circumstances  attending  the  transaction.  The  evidence 
of  the  payment  must  have  been  in  the  defendant's  possession,  and  it  should 
have  been  produced  :  Callan  v.  Statham,  23  How.  477.     So  upon  the  prin- 


OF    EVIDENCE.  711 

extracted  passages,  make  other  passages  evidence,  except 
so  far  as  they  are  explanatory  of  the  passages  read. 

ciple  that  the  answer  of  an  infant  by  his  guardian  is  not  binding  on  him,  e 
converso,  it  cannot  be  used  as  evidence  in  his  favor  :  Bulkley  v.  Van  Wyck, 
5  Paige  536.  And  it  may  be  further  stated  here,  that  the  general  rule  in 
some  of  the  states  is  subjected  to  certain  modifications  by  statutory  provi- 
sions.    See  3  Greenl.  Ev.  §  289,  note. 

Most  of  these  exceptions,  it  is  to  be  remembered,  are  only  applicable 
■where  the  complainant  has  put  in  a  replication,  and  taken  issue  upon  the 
allegations  of  the  answer.  Where  he  does  not  do  so,  however,  or  where, 
after  putting  in  a  replication,  he  sets  the  case  down  for  hearing  on  bill  and 
answer,  he  so  far  waives  his  rights,  and  the  answer  is  to  be  taken  as  true 
whether  responsive  or  not:  Cherry  r.  Belcher,  5  Stew.  &  Port.  134;  Pierce 
V.  "West's  Ex'rs.,  1  Peters  C.  C.  351 ;  Dale  v.  McEvers,  2  Cow.  118  :  Jones  v. 
Mason,  5  Rand.  577  ;  Scott  v.  Clarkson,  1  Bibb  277  •,  Moore  v.  Hylton,  1  Dev. 
Eq.  429 ;  Carman  v.  Watson,  1  How,  (Miss.)  333 ;  3  Greenl.  ^  288;  Lans- 
ing r.  Smith,  1  Pars.  Eq.  17  ;  Warer.  Richardson,  3  Md.  505  ;  Mason  r.  Mar- 
tin, 4  Id.  124 ;  Perkins  p.  Nichols,  1 1  Allen  542  ;  Farrell  r.  McKee,  36  111.  225. 
The  answer  of  one  defendant,  on  the  other  hand,  is  not,  in  general,  evi- 
dence in  behalf  of  another  defendant  :  Morris  v.  Nixon,  1  How.  U.  S.  119  ; 
Larkin's  Appeal,  38  Penn.  St.  457  ;  3  Greenl.  g  283 ;  see  Farley  v.  Bryant, 
32  Maine  474 ;  Gilmore  v.  Patterson,  36  Id.  544.  Though  where  it  is 
directly  responsive  and  furnishes  a  disclosure  of  the  facts  required  unfavor- 
able to  the  complainant,  and  especially  where  the  title  of  such  other  de- 
fendant is  merely  derivative,  it  has  been  held  otherwise :  Greenl.  ut  sup. ; 
Mills  r.  Gore,  20  Pick.  28.  The  answer  of  one  defendant  cannot  be  read 
in  evidence  against  a  co-defendant  when  there  is  no  privity  between  the 
two :  Adkins  v.  Paul,  32  Ga.  219 ;  Alden  v.  Holden,  Id.  418  ;  see  also,  Hoflf 
V.  Burd,  2  Green  (X.  J.)  201 ;  Eckman  v.  Eckman,  55  Penn.  St.  269. 

In  equity,  a  complainant  is  entitled  to  read  so  much  of  the  answer  only 
in  evidence,  as  contains  the  admissions  on  which  he  desires  to  rely,  subject, 
however,  to  this  exception,  that  he  must  also  read  all  the  explanations 
and  qualifications,  by  which  the  admissions  may  be  accompanied,  though 
contained  in  a  distinct  part  of  the  answer,  but  incorporated  by  reference  in 
the  admissions :  Parrish  v.  Koons,  1  Pars  Eq.  97  ;  Gleen  v.  Randall,  2  Md. 
Ch.  220 ;  ante,  21  ;  3  Greenl.,  §  281.  This,  however,  does  not  apply  to  what 
is  really  matter  of  discharge  or  defence,  relied  upon  by  the  defendant  in 
connection  with  an  admission  of  the  liability  charged  in  the  bill,  which,  as 
has  been  stated  above,  must  be  proved  by  him  at  the  hearing,  if  the  answer 
has  been  replied  to ;  and  if  the  matter  in  avoidance  has  been  so  skilfully 
interwoven  into  the  grammatical  construction  of  the  passages  containing  the 
admissions,  that  both  must  be  read  together,  the  complainant  will  be  enti- 


712  ADAMS's    DOCTRINE    OF    EQUITY. 

III.  The  proof  must  be  by  legitimate  eAddence. 

The  only  doctrine  under  this  head  which  can  be  con- 
sidered peculiar  to  Courts  of  Equity  regards  the  admissi- 
bility as  witnesses  of  parties  to  the  suit.(c?)  By  the 
ordinary  rules  of  Evidence,  until  altered  by  a  late  statute,  (e) 
a  person  interested  in  the  result  of  the  suit  was  inadmis- 
sible as  a  witness,  and  it  is  obvious  that  this  ground  of 
objection  applied  more  forcibly  to  the  immediate  parties 
on  the  record  than  to  any  other  person.  The  general 
incapacity  in  respect  of  interest  has  been  abrogated  by 
r*Rfi4-1  ^^^^  statute,  but  the  case  *of  the  immediate  par- 
ties to  the  record  is  expressly  excepted  from  its 
effect. 

If,  however,  the  person  tendered  for  examination, 
though  nominally  a  party  on  the  record,  had  in  truth  no 
interest  in  the  event,  he  was   even  at  law   a  competent 

[d)  1  Dan.  Ch.  P.  845.  (e)  6  &  7  Vict.  c.  85. 

tied  to  have  the  matter  of  avoidance  considered  as  struck  out:  3  Greenl., 
g  281  ;  McCoy  v.  Rhodes,  11  How.  U.  S.  131 ;  Whiting  v.  Beebe,  7  Eng. 
(Ark.)  421  ;  Baker  v.  Williamson,  4  Penn.  St.  467. 

Where,  nevertheless,  a  decree  is  sought  upon  grounds  disclosed  in  the 
answer  variant  from  those  assumed  in  the  bill,  the  whole  answer  must  be 
taken  together,  the  matter  of  charge  as  well  as  discharge,  and  must,  when 
so  taken,  make  out  a  proper  case  for  relief:  MuUoy  v.  Young,  10  Humph. 
298. 

It  is  equally  settled,  however,  that  at  law,  a  party  relying  on  an  answer 
to  a  bill  of  discovery,  must  read  the  whole  or  none  :  ante  21 ;  and  this  rule 
has  been  also  held  to  apply  in  cases  where  the  Court,  having  obtained  ju- 
risdiction of  discovery,  goes  on  to  give  the  necessary  relief,  to  avoid  a  mul- 
tiplicity of  suits,  though  there  be  a  full  and  adequate  remedy  at  law,  which 
is  generally  done  in  the  United  States :  Lyons  v.  Miller,  6  Gratt.  439.  The 
answer  cannot  be  attacked  by  evidence  tending  to  impeach  the  defendant's 
credibility ;  and  such  evidence  is  inadmissible :  Brown  v.  Bulkley,  1 
McCart.  294.  In  this  case,  Butler  v.  Catlin,  1  Root  310,  and  Salmon  v. 
Clagett,  3  Bland  165,  were  followed ;  and  Miller  v,  Tolleson,  1  Harp.  Ch. 
145,  where  a  contrary  doctrine  had  been  held,  was  disapproved. 


OF    EVIDENCE.  713 

witness. (/)  But  it  rarely  happens  that  at  law  any  per- 
son is  joined  on  the  record  who  is  not  interested  either 
in  the  issue  or  in  the  costs. 

In  equity,  on  the  contrarj"-,  it  often  happens  that  parties 
are  joined  as  trustees/  or  otherwise,  without  possessing  or 
claiming  a  beneficial  interest,  or  that,  even  if  they  have  a 
beneficial  interest,  it  extends  only  to  some  of  the  points 
at  issue.  The  principle,  therefore,  which  before  the 
alteration  of  the  law  established  the  admissibility  of  such 
persons  as  witnesses  was  one  of  frequent  operation,  and 
seems  to  be  correctly  embodied  in  the  following  rule : 
that  where  any  person  was  made  a  defendant  for  form's 
sake,  and  no  decree  could  be  had  which  He  had  any  bene- 
ficial interest  in  resisting,"^  or  where  he  had  by  his  answer 

[J")  Phillips  on  Evidence,  51 ;  Worrall  r.  Jones,  7  Bing.  398. 


^  A  trustee  defendant,  having  a  legal  interest  altogether  nominal,  is  a 
competent  witness  as  to  the  merits  or  design  of  the  trust  deed  :  Hawkins 
V.  Hawkins,  2  Car.  Law  Rep.  627. 

In  equity,  a  mere  trustee  may  in  generaT  be  a  witness:  Neville  v.  De- 
meritt,  1  Green  Ch.  321  ;  Harvey  v.  Alexander,  1  Hand.  219 ;  Taylor  v. 
Moore,  2  Id.  563 ;  Trustees  of  Watertown  v.  Cowen,  4  Paige  510  ;  Hodges 
V.  Mullikin,  1  Bland  503  ;  Hardwiek  v.  Hook,  8  Ga.  354.  See  Southard  v. 
Cushing,  11  B.  Monr.  344.  This  rule  has  been  adopted  at  law  in  Penn- 
sylvania :  Drum  r.  Simpson,  6  Binn.  481  ;  King  c.  Cloud,  7  Penn.  St.  467  ; 
Keim  t*.  Taylor,  11  Id.  163 ;  Sorg  v.  First  German,  &c.,  63  Id.  156.  But  it 
18  to  be  remembered  that  where,  as  is  the  case  now  in  most  of  the  United 
States,  a  trustee  is  entitled  to  commissions,  he  is  so  far  interested  in  the  tmst 
estate  ;  and  must  release  that  interest,  before  he  can  be  permitted  to  testify 
in  a  cause  in  which  it  may  be  in  any  way  affected.  See  Anderson  v.  Neff, 
11  S.  &  R.  208 ;  Patton  v.  Ash,  7  Id.  116 ;  King  v.  Cloud,  7  Penn.  St.  467. 

'  A  defendant  made  a  party  pro  forma  only,  or  where,  in  general,  no 
decree  could  properly  be  passed  against  him,  may  be  made  a  witness  for 
his  co-defendant :  Kirk  v.  Hodgson,  2  Johns.  Ch.  550  ;  llagan  v.  Echols,  5 
Ga.  71  ;  Sharp  ».  Morrow,  6  Monr.  305  ;  Warren  v.  Sproule,  2  A.  K.  Marsh. 
539;  AVright  c.  Wright,  2  McCord  Ch.  185;  Butler  r.  Elliott,  15  Conn. 
187  ;  see  also,  Caphart  v.  Huey,  1  Hill  Ch.  405  ;  Jones  v.  Bullock,  2  Dev. 
Ch.  368;  Bell  v.  Jasper,  2  Ired.  Eq.  597  ;  Wilson  v.  Allen,  1  Jones  Eq.  24. 
And  he  may  be  a  witness  against  a  co-defendant,  where  he  is  necessarily 


714  ADAMS's     DOCTRINE     OF    EQUITY. 

submitted  to  a  decree,  and  had  therefore  ceased  to  have 
such  interest/  or  where,  though  having  an  interest,  he 
had  it  in  respect  of  a  part  only  of  the  matters  in  issue, 
he  might  be  examined  as  a  witness  either  generally,  or  in 
respect  to  those  matters  in  which  he  had  410  interest.^ 

a  party,  but  will  not  be  affected  by  the  decree  against  his  co-defendant, 
and  does  not  swear  in  favor  of  his  own  interest :  Williams  v.  Beard,  3  Dana 
158  ;  Miller  v.  McCan,  7  Paige  457.  A  party  charged  as  combining  with 
others  in  a  fraud  against  which  relief  is  sought,  and  therefore  made  a  de- 
fendant, no  particular  relief  being  prayed  against  him,  may  be  a  witness 
for  his  co-defendant,  though  liable  for  costs  :  Xeilson  v.  McDonald,  6 
Johns.  Ch.  201  ;  2  Cowen  139.  But  not  so  where  he  is  affected  by  the  charge, 
and  may  be  liable  for  more  than  the  costs :  Ormsby  v.  Bakewell,  7  Ham. 
98,  Istpart;  Pope  v."  Andrews,  1  S.  &  M.  Ch.  135;  see  Whipple  r..  Van 
Rensselaer,  3  Johns.  Ch.  612  ;  Farley  v.  Bryant,  32  Maine  474. 

*  A  defendant  who  suffers  the  bill  to  be  taken  as  confessed,  and  thereby 
enables  the  complainant  to  obtain  a  decree  against  him  individually,  is  a 
competent  witness  for  his  co-defendant :  Holgate  v.  Palmer,  8  Paige  461  ; 
Post  V.  Dart,  Id.  639  ;  Lupton  v.  Lupton,  2  Johnp.  Ch.  625. 

■^  Lingen  v,  Henderson,  1  Bland  268.  The  mere  fact  that  a  person  is 
made  a  defendant  to  a  bill  in  chancery  does  not  render  him  an  incompe- 
tent witness  in  the  suit  as  to  matters  in  which  he  has  no  interest.  Before 
a  decree,  one  defendant  may  have  an  order  for  the  examination  of  his  co- 
defendant  as  to  matters  in  which  the  latter  is  not  interested,  saving  to  the 
plaintiff  all  just  exceptions.  And  it  is  not  a  good  exception  that  he  has  an 
interest  in  any  other  matters  embraced  in  the  cause,  unless  these  matters 
will  be  affected  by  his  examination :  Williams  v.  Maitland,  1  Ired.  Eq.  92  j 
Sproule  t'.  Samuel,  4  Scammon  135  ;  Dyer  v.  Martin,  Id.  146  ;  Allison  v. 
Allison,  7  Dana  92 ;  Armsby  v.  Wood,  Ilopk.  229  ;  Second  Cong.  Soc,  &c. 
V.  First  Cong.  Soc,  &c.,  14  N.  H.  315;  Tolson  v.  Tolson,  4  Md.  Ch.  119. 
But  an  order  must  be  first  obtained  :  Hewett  v.  Crane,  2  Halst.  Ch.  159 ; 
Second  Cong.  Soc.  v.  First  Cong.  Soc,  ut  supr. ;  Hoyt  v.  Hammekin,  14 
How.  U.  S.  350. 

But  it  has  been  held,  that  the  omission  to  procure  the  previous  order  of 
the  court  for  the  examination  of  a  defendant  as  a  witness,  is  a  mere  irreg- 
ularity, and  when  it  is  apparent  that  no  substantial  injustice  has  been  in- 
flicted upon  the  opposite  party  by  denying  him  the  benefit  of  a  cross-exam- 
ination, and  that  delay  and  injury  will  be  visited  upon  the  party  relying 
upon  the  proof,  an  objection  thereto  on  this  ground  ought  not  to  prevail : 
Tolson  V.  Tolson,  4  Md.  Ch.  119.  See,^  on  this  subject,  8  Greenl.  Ev., 
?  314,  &c. 


OF    EVIDENCE.  715 

And  liberty  so  to  examine  him  might  be  obtained  as  of 
course  by  either  the  plaintiff  or  a  co-defendant,  sa^dng 
just  exceptions.  The  application  to  examine  him  was  ac- 
companied by  a  suggestion  that  he  had  no  interest.  (^)  If 
that  suggestion  were  untrue,  the  deposition  was  disallowed 
at  the  hearing;  and  if  the  examination  had  been  by  the 
plaintiff,  he  could  not  pray  an  adverse  decree  against  the 
defendant  examined,  nor  against  others  who  might  be 
secondarily  liable,  (h)  ^  The  act  above  referred  to  abolished 
the  suggestion  of  "no  interest,"  and  provides  that  in 
Courts  of  equity  any  defendant  may  be  *ex-  p.^pr-i 
amined  as  a  witness,  saving  just  exceptions,  and  *-  -" 
that  any  interest  which  he  may  have,  shall  not  be  deemed 
a  just  exception  to  his  testimony,  but  shall  only  be  con- 
sidered as  affecting  or  tending  to  affect  his  credit.  (*') 

The  plaintiff  is  in  all  cases  incompetent  as  a  witness. 
If  a  co-plaintiff  be  desirous  of  his  evidence,  and  the  defend- 
ant will  not  consent  to  the  examination,  he  must  move 
for  leave  to  strike  out  his  name  as  plaintiff  on  payment 
of  the  costs  already  incurred  and  to  make  him  a  defendant 

(r/)  Murray  i\  Shadwell,  2  Ves.  &  B.  401. 

(h)  Massy  v.  Massy,  1  Beatty  353;  Champions.  Champion,  15  Sim.  101. 

(i)  6  &  7  Vict.  c.  85,8.  1. 

^  Where  a  defendant  has  been  used  by  the  complainant  as  a  witness,  no 
decree  can  in  general  be  made  against  him  or  against  others  who  may  be 
secondarily  liable  with  him  as  to  the  matters  upon  which  he  has  been  ex- 
amined ;  and  if  he  has  been  examined  upon  the  whole  case  made  by  the 
bill,  it  must  be  dismissed  as  to  him  and  them :  Lingan  v.  Henderson,  1 
Bland  268 ;  Bradley  v.  Root,  5  Paige  633  ;  Palmer  v.  Van  Doren,  2  Edw. 
Ch.  192.  But  this  rule  does  not  apply  to  the  case  of  a  mere  formal  de- 
fendant, as  an  executor  or  trustee,  against  whom  no  personal  decree  is 
sought,  and  who  has  no  personal  interest  in  the  question  as  to  which  he  is 
examined  as  a  witness  against  his  co-defendants  ;  nor  to  the  case  of  a  de- 
fendant who,  by  his  answer,  admits  his  own  liability,  or  who  suffers  the 
bill  to  be  taken  as  confessed  against  him  :  Bradley  v.  Root,  5  Paige  633. 


716  ADAMS'S     DOCTRINE     OF    EQUITY. 

by  amendment.^  If  the  examination  is  required  on  be- 
half of  a  defendant,  it  can  only  be  had  by  the  plaintiff's 
consent.  [Jc) 

The  manner  of  taking  evidence  is  different  in  equity 
and  at  law.  It  is  taken  at  law  viva  voca,  and  publicly;  in 
equity  it  is  written  and  secret.  The  origin  of  this  dis- 
tinction is  the  difference  of  the  objects  which  the  two 
tribunals  have  in  view.^ 

The  object  at  law  is  to  enable  the  jury  to  give  their 
verdict  on  the  issue  joined  between  the  parties.     They 

(^•)  Fisher  v.  Fisher,  2  Ph.  236. 

'  Leavitt  v.  Steenbergen,  3  Barb.  S.  C.  155;  Helms  ».  Franciscus,  2 
Bland  544  •,  Eckford  v.  De  Kay,  6  Paige  565  ;  3  Greenl.  Ev.,  ?  314.  See 
Pusey  V.  Wright,  31  Penn.  St.  287.  So,  an  application  by  a  defendant 
having  a  common  interest  with  the  plaintiffs,  adverse  to  that  of  the  other 
defendants,  for  leave  to  examine  a  plaintiff  against  the  other  defendants, 
is  treated  as  if  made  by  the  plaintiffs  themselves,  and  such  permission  \ii\\ 
not  be  granted :  Eckford  v.  De  Kay,  6  Paige  565  ;  see,  also,  Ross  v.  Carter, 
4  Hen.  &  Munf.  488. 

"  Very  considerable  changes  have  been  introduced  in  many  of  the  United 
States,  in  the  manner  of  the  trial  of  disputed  issues  in  Chancery,  in  the 
method  of  examination  of  witnesses,  and  the  like.  Mr.  Greenleaf  (3  Evi- 
dence, s.  267)  thus  sums  up  the  diversities  existing  among  the  different 
states  in  these  respects:  "In  some,  the  parties  may  examine  each  other  as 
witnesses ;  in  others,  this  is  not  permitted.  In  some,  the  witnesses  may  be 
examined  in  court  viva  voce,  as  at  law  ;  in  others,  the  testimony  is  always 
taken  in  writing,  either  in  open  court,  by  the  clerk,  the  judge,  or  in  depo- 
sitions, after  the  former  method.  In  the  latter  case,  however,  there  is  this 
further  diversity  of  practice,  that,  in  some  states,  the  parties  may  examine 
and  cross-examine  the  witness,  ore  tenus,  before  the  magistrate  or  commis- 
sioner ;  in  others,  they  may  only  propound  questions  in  writing,  through 
the  commissioner  ;  and  in  others,  they  may  only  be  present  during  the  ex- 
amination and  take  notes  of  the  testimony,  but  without  speaking ;  while  in 
others,  the  parties  are  still  excluded  from  the  examination.  In  some  of  the 
states,  also,  it  is  required  that  all  matters  of  fact,  in  all  cases,  shall  be  tried 
by  the  jury ;  in  others,  it  is  at  the  option  of  the  parties;  in  others,  it  is 
apparently  left  in  the  direction  of  the  court ;  but  with  plain  intimations 
that  it  ought  not  to  be  refused,  unless  for  good  cause."  In  the  previous 
sections,  these  distinctions  are  more  elaborately  dwelt  upon. 


OF    EVIDENCE.  717 

are  not  required  to  decide  on  the  merits  of  the  case  gene- 
rally, or  to  elicit  a  legal  conclusion  from  a  series  of  facts, 
but  are  to  give  their  verdict  on  the  balance  of  testimony, 
affirmative  and  negative,  direct  and  indirect,  submitted  to 
them  on  the  issues  joined.  In  order,  therefore,  that  this 
object  may  be  best  attained,  it  is  necessary,  not  that  the 
evidence  should  be  correctly  recorded,  but  that  at  the  time 
of  its  being  given  it  should  be  thoroughly  compared  and 
sifted;  and  thLs  is  done  by  an  examination  vivd  voce  and 
in  public.  The  jury  are  thus  aided  by  the  tone  and  man- 
ner of  the  witnesses,  as  well  as  by  his  actual  assertions. 
They  have,  in  a  comparatively  short  time,  the  witnesses 
on  both  sides  brought  under  their  notice,  their  inaccuracies 
or  obscurities  corrected  or  explained,  and  the  entire  mass 
of  evidence  commented  on  by  counsel,  and  summed  up  by 
the  judge,  and  the  danger  of  mistake  or  misapprehension 
in  the  witnesses,  as  well  as  that  of  a  deliberate  perjury, 
is  partly  remedied  by  the  solemnity  *of  a  public  r*ocp-] 
trial,  and  in  a  still  greater  degree  by  the  search- 
ing ordeal  of  cross-examination.  The  verdict,  when  given, 
is  added  to  the  record,  but  there  is  no  judicial  record  of 
the  evidence.  If  the  verdict  is  complained  of  as  being 
against  the  evidence,  the  private  notes  of  the  judge,  or 
the  admissions  of  counsel,  are  the  only  materials  furnished 
to  the  Court ;  and  if  the  Court  in  its  discretion  grants  a 
new  trial,  such  new  trial  must  take  place  as  on  a  new 
issue,  before  a  new  and  independent  jury,  who  will  decide 
according  to  the  evidence  laid  before  themselves.  If  the 
verdict  is  undisturbed,  but  its  legal  effect  on  the  question 
in  dispute  is  doubted,  that,  as  a  question  of  law,  must 
be  decided  by  the  Court ;  but  for  the  purpose  of  such  de- 
cision, as  weU  as  of  any  subsequent  appeal,  the  verdict 
only,  and  not  the  evidence,  appears  upon  the  record. 


718  ADAMS's     DOCTRINE     OF     EQUITY. 

In  a  Court  of  law,  therefore,  a  tnvd  voce  examination 
in  public  is  the  regular  mode  of  proof.  In  equity,  the 
object  of  the  evidence  is  different,  and  so  also  is  the  mode 
of  taking  it. 

The  trial  and  determination  of  disputed  issues  are  not 
the  principal  objects  of  evidence  in  equity ;  for  the  nature 
of  the  questions  there  litigated  does  not  generally  give 
rise  to  such  issues ;  and  those  which  do  occur,  if  they 
present  any  serious  difficulty  of  trial,  are  generally  re- 
ferred to  the  verdict  of  a  jury.  {X)  The  power,  therefore, 
of  sifting  and  comparing  testimony,  which  is  the  primary 
requisite  at  law,  becomes  comparatively  unimportant  in 
equity ;  and  the  principal  objects  there  contemplated  are 
first,  to  elicit  a  sworn  detail  of  facts,  on  which  the  Court 
may  adjudge  the  equities  ;  and  secondly,  to  preserve  it  in 
an  accurate  record,  for  the  use,  if  needed,  of  the  Appellate 
Court. 

For  this  reason  it  is  required  in  equity  that  all  wit- 
nesses shall  be  examined  before  the  hearing,  and  their 
answers  taken  down  in  writing,  so  that,  when  the  cause 
comes  on  for  decision,  the  judge  may  not  be  distracted 
r*^fi71  ^^  ^^  ^™^  *^^  separate  issues  on  evidence  then 
brought  forward  for  the  first  time,  but  may  give 
his  undivided  attention  to  the  decree,  which  the  facts 
admitted  or  proved  will  warrant;  and  that,  if  his  decree 
be  appealed  from,  the  Court  of  Appeal  may  have,  in 
an  authorized  record,  all  the  materials  on  which  it  is 
founded. 

The  protracted  nature  of  a  written  examination  neces- 
sarily involves  the  risk  that  defects  of  evidence  might  be 
discovered  in  the  course  of  taking  it,  and  false  testimony 
procured  to  remedy  them.     In  order  to  avoid  this  risk, 

(Z)  Infra,  Issue. 


OF    EVIDENCE.  719 

the  witnesses  are  examined  privately  by  an  officer  of  the 
Court ;  and  it  is  an  imperative  rule,  that  until  the  exam- 
ination has  been  completed  and  the  entire  depositions  given 
out,  which  is  technically  termed  passing  publication, 
neither  party  shall  be  made  acquainted  with  his  adver- 
sary's interrogatories,  nor  with  any  part  of  the  answers  on 
either  side;  and  that  after  publication,  no  further  wit- 
nesses can  be  examined  without  special  leave,  [m) 

The  secrecy  thus  observed  must  to  some  extent  involve 
the  possibility,  not  only  of  false  evidence  being  given,  but 
of  true  evidence  being  given  in  an  imperfect  form,  where 
a  party,  in  the  absence  of  his  opponent,  so  frames  his 
interrogatories  as  to  elicit  testimony  respecting  part  only 
of  a  transaction.  This  is  an  evil  which  cannot  altogether 
be  avoided ;  but  it  is  in  a  great  degree  remedied  by  the 
rule,  that  in  order  to  give  weight  to  evidence,  the  facts 
which  it  is  intended  to  support  must  have  been  previously 
detailed  in  the  pleadings.  Should  this  security  prove 
insufficient,  so  that  a  doubt  exists  at  the  hearing  whether 
all  material  facts  are  before  the  Court,  further  inquiries 
may  be  dh'ected,  and  the  decision  in  the  meantune  delayed. 

The  mode  of  examination  is  by  written  interrogatories, 
which,  in  the  cases  of  witnesses  resident  within  twenty 
*miles  of  London,  are  administered  by  an  officer  r^opn-i 
called  the  examiner ;  or  if  they  are  resident  be- 
yond that  distance,  and  the  parties  are  unwilling  to  incur 
the  expense  of  bringing  them  to  town,  by  commissioners 
specially  appointed  for  the  purpose,  (w)^ 

The  interrogatories,  as   well  as  the  bill  and  answer, 

(m)  1  Dan.  Ch.  P.  948. 

(n)  Mostyn  v.  Spencer,  6  Beav.  135  ;  Orders  of  1845,  xciv.-cx. ;  1  Dan. 
Ch.  P.  860. 

^  See,  on  this  subject,  3  Green.  Evid.,  s.  319,  et  seq. 


720  ADAMS's    DOCTRINE    OF    EQUITT. 

must  be  signed  by  counsel,  as  a  security  to  the  Court  that 
no  irrelevant  or  improper  matter  is  inserted. 

They  are  framed  as  a  series  of  questions,  directed  suc- 
cessively to  the  several  facts  in  issue,  and  numbered. 
First  Interrogatory,  Second  Interrogatory,  and  so  forth ; 
and  a  marginal  note  is  usually  affixed  to  each,  pointing 
out  the  witness  for  whom  it  is  intended. 

In  framing  interrogatories  the  same  rule  must  be  ob- 
served as  in  putting  questions  to  a  witness  at  law ;  viz., 
they  must  not  be  leading  or  suggestive  on  material  points ; 
and  they  must  not  be  so  framed  as  to  embody  material 
facts  admitting  of  an  answer  by  a  simple  negative  or 
affirmative,  and  thus  presenting  to  the  Court  the  evidence, 
not  as  it  would  be  stated  by  the  witness  himself,  but  with 
the  coloring  prompted  by  professional  skill  and  a  previous 
knowledge  of  the  case  to  be  proved.  In  guarding  against 
the  latter  of  these  objections,  a  risk  is  necessarily  incurred 
of  framing  the  question  in  so  general  a  form,  that  a  wit- 
ness may  unawares,  or  through  misapprehension,  omit  an 
important  fact;  and,  if  such  omission  should  occur,  the 
framer  of  the  interrogatories  has  not,  like  an  examining 
counsel  at  nisi  prius  the  opportunity  of  adding  to  and 
var}Tng  his  question,  so  as  to  suit  the  apprehension  of 
the  witness.  Great  care  is  therefore  requisite  in  so  fram- 
ing the  interrogatories,  that  the  witness's  mind  may  be 
led  into  the  right  channel  of  thought ;  and  the  difficulty 
r*HfiQ1  ^^  effecting  this  is  materially  diminished,  *if,  be- 
fore the  interrogatories  are  settled,  an  accurate 
statement  is  prepared  of  each  witness's  evidence,  in  the 
same  manner  as  at  nm  prius.  Beyond  these  general  prin- 
ciples it  is  impossible  to  lay  down  any  uniform  system  for 
interrogatories,  which  must  necessarily  vary  in  every  in- 
stance, according  to  the  circumstances  of  the  individual 
case. 


OF    EVIDENCE.  721 

At  the  conclusion  of  each  interrogatory  the  following 
words,  denoted  in  the  draft  by  the  words  "  Declare/'  &c. 
are  inserted  in  the  engrossment:  "Declare  the  truth  of 
the  several  matters>in  this  interrogatory  inquired  after, 
according  to  the  best  of  your  knowledge,  remembrance, 
and  belief,  with  your  reasons  fully  and  at  large ;"  and  at 
the  end  of  the  set  the  draftsman  may,  if  he  please,  add 
what  is  called  the  general  Concluding  Interrogatory, 
"  Do  you  know  or  can  you  set  forth  any  other  matter  or 
thing  which  may  be  of  benefit  or  advantage  to  the  parties 
at  issue  in  this  cause,  or  either  of  them,  or  that  may  be 
material  to  the  subject  of  this  your  examination,  or  to  the 
matters  in  question  in  this  cause  ?  If  yea,  set  forth  the 
same,"  &c.(o)  The  addition,  however,  is  not  compulsory ; 
and  it  is  generally  more  prudent  to  omit  it ;  for,  if  due 
care  has  been  taken  in  preparing  the  evidence,  all  matters 
beneficial  to  the  examining  party  will  have  been  already 
elicited  by  the  special  interrogatories ;  so  that  any  evi- 
dence elicited  by  the  general  one  is  likely  to  benefit  his 
adversary  rather  than  himself. 

Before  the  witnesses  are  examined,  the  examining  offi- 
cer is  generally  instructed  as  to  the  interrogatories  applying 
to  each  witness.  During  the  actual  examination,  the  ex- 
amining officer  and  the  witness  are  the  only  persons  pre- 
sent, all  third  persons  being  strictly  excluded.  The 
witness  is  then  examined  on  each  interrogatory  in  order, 
his  answers  being  taken  down  on  paper,  and  is  not  per- 
mitted to  read,  or  hear  read,  any  other  interrogatory,  until 
that  in  hand  be  fully  answered. 

*When  all  the  interrogatories  have  been  gone    r*o7A-] 
through,  the  deposition  is  read  over  to  the  wit- 
ness, who,  after  correcting  any  error  or  omission,  signs  it. 

(o)  1  Dan.  Ch.  P.  858. 
46 


722  ADAMS's    DOCTRINE    OF    EQUITY. 

The  affixing  of  his  signature  completes  his  examination, 
and  he  cannot  be  again  examined  on  behalf  of  the  same 
party,  (p) 

If  any  of  the  interrogatories  are  such  as  the  witness  is 
not  bound  to  answer,  e.  g.,  if  they  intend  to  expose  him  to 
a  penalty  or  forfeiture,  or  involve  a  breach  of  professional 
confidence,  he  may  decline  to  answer  them,^  stating  at  the 
same  time  on  oath  his  reasons  for  so  doing ;  a  proceeding 
which  is  somewhat  inaccurately  called  a  Demurrer  to  In- 
terrogatories. The  examiner  or  commissioner  takes  down 
the  statement  in  writing,  and  the  objection  is  heard  and 
decided  by  the  Court.  (§')  If  the  witness  himself  does  not 
object  to  the  question,  and  its  impropriety  depends  on 
general  grounds,  and  not  on  such  as  are  personal  to  him- 
self, as  where  it  involves  a  breach  of  professional  confi- 
dence, or  where  the  interrogatories  are  leading,  or  the  de- 
positions scandalous,  or  where  any  serious  irregularity  has 
occurred  in  taking  them,  the  Court,  on  motion  within  a 
reasonable  time  wiU  suppress  the  depositions,  (r) 

The  witnesses  examined  in  chief  by  either  party  may 
be  cross-examined  by  his  opponent ;  and  the  interroga- 
tories filed  for  this  purpose,  which  are  termed  Cross  In- 
terrogatories, are  in  all  respects  similar  to  the  interroga- 
tories in  chief,  except  that  they  are  not  subject  to  objec- 
tion on  the  ground  of  leading  the  witness.  It  is,  however 
very  seldom  that  any  good  result  is  effected  by  a  cross- 

( p)  Cockerell  v.  Cholmeley,  3  Sim.  313 ;  Whitaker  v.  Wright,  3  H. 
412. 

[q)  Parkhurst  v.  Lowten,  2  Swanst.  206 ;  Langley  v.  Fisher,  5  Beav. 
443  ;  Carpmael  v.  Powis,  1  Ph.  687. 

(r)  Shaw  v.  Lindsey,  15  Ves.  381  ;  Healey  v.  Jagger,  3  Sim.  494  ;  Moys- 
ton  V.  Spedcer,  6  Beav.  135. 

^  The  witness  cannot  refuse  to  be  sworn,  however :  Ex  parte  Bunn,  26 
L.  J.  Ch.  614. 


OF    EVIDENCE.  723 

examination  in  equity ;  for  it  is  conducted  in  ignorance  of 
the  question  in  chief,  and  therefore,  as  applied  to  the  ad- 
versary's case,  is  uncertain  and  often  dangerous ;  and  it 
cannot  be  applied,  as  at  nisi  prius,  to  the  proof  of  an  in- 
dependent *case.  If  the  evidence  of  the  witness  rH:q7i-| 
is  required  for  that  purpose,  he  may  be  examined 
on  original  interrogatories ;  but  his  cross-examination 
must  be  confined  to  those  points  on  which  he  has  been 
already  examined  in  chief,  (s) 

The  time  for  publishing  the  depositions  is  fixed  by  the 
general  orders  of  the  Court.  (^)  If  either  party  wishes  to 
delay  this  step,  in  order  to  complete  the  examination  of 
his  witnesses,  he  must  apply  to  the  Master  to  whom  the 
cause  stands  referred,  to  enlarge  the  publication  for  a 
further  time.  And,  even  after  publication  has  nominally 
passed,  yet  if  the  depositions  have  continued  secret,  and 
through  surprise  or  accident,  without  blamable  negligence, 
either  party  has  failed  to  examine  his  witnesses,  a  similar 
indulgence  may  be  obtained.  An  order,  however,  for  this 
latter  purpose,  although  in  form  for  enlarging  publication, 
is  in  reality  for  leave  to  examine,  notwithstanding  publi- 
cation passed,  and  must  be  obtained  by  application  to  the 
Court,  [ti) 

After  the  depositions  have  been  published  and  read,  no 
further  e^ddence  is  admissible  without  special  leave,  ex- 
cept evidence  to  discredit  a  witness,  either  by  impeaching 
his  general  credibility,  or  by  showing  him  to  have  sworn 
falsely  in  a  part  of  his  evidence  not  material  to  the  issue 
in  the  cause.  With  respect  to  the  material  parts  of  his 
evidence,  such  discretionary  evidence  is  not  admissible, 

(s)  1  Dan.  Ch.  P.  856. 

{t)  Orders  of  1845,  cxi.,  cxiii. 

(m)  Carr  v.  Appleyard,  2  M.  &  C.  476.] 


724  ADAMS's    DOCTRINE    OF    EQUITY. 

lest,  under  the  pretence  of  impeaching  his  credibility,  new 
evidence  should  be  introduced,  (e;)^ 

The  rule  excluding  evidence  after  publication  passed, 
is  subject  to  the  discretion  of  the  Court.'^  And  the  in- 
firmity of  written  testimony  taken  in  the  absence  of  both 
judge  and  counsel,  and  without  any  means  of  rectifying 
slips  while  the  examination  proceeds,  renders  it  some- 
times necessary  to  apply  for  a  relaxation.  Permission 
has  accordingly  been  granted  to  examine  witnesses  after 
r*S72"l  P^Wication,  *  where  the  interrogatories  originally 
exhibited  have  failed  of  effect,  either  by  a  sup- 
pressal  of  the  depositions  on  the  ground  of  leading,  or  by 
reason  of  the  questions  being  improperly  framed,  or  where, 
being  misunderstood  by  the  witness,  errors  occur  which  at 
law,  where  both  judge  and  counsel  are  present,  would  have 
been  remedied  by  putting  the  question  in  a  better  form.  (2v) 
The  same  indulgence  has  been  given  where  the  plaintiff 
had  relied  on  admissions  in  the  answer,  Avhich  were  held 
insufficient  or  ineffectual  at  the  hearing;  and  where, 
through  the  inadvertence  of  counsel,  the  plaintiff  had 
omitted  to  give  evidence  on  a  point  which,  though  mate- 
rial to  the  relief  sought,  was  not  really  contested  in  the 
cause.  But  the  Court  must  be  satisfied  by  affidavit,  or 
otherwise,  that  the  slip  has  been  wholly  accidental,  and 
has  not  been  purposely  made  in  order  to  have  an  oppor- 
ttmity  of  re-examining.  And  there  does  not  appear  to  be 
any  instance  where  liberty  has  been  given  to  supply  evi- 
dence on  the  actual  question  in  dispute,  (rr)      The  regular 

(»)  1  Dan.  Ch.  P.  948.  («?)  1  Dan.  Ch.  P.  942. 

(x)  Cox  ».  Allingham,  Jac.  337  ;  Hood  v.  Pimm,  4  Sim.   101 ;  Stanney 

^  See  on  this  point,  Gass  v.  Stinson,  2  Sumner  605  ;  Troup  v.  Sherwood, 
3  Johns.  Ch.  558  ;  Evans  v.  Boiling,  5  Ala.  550. 

'  See  3  Greenl.  Ev.,  s.  340,  et  seq. ;  Ridgeway  v.  Toram,  2  Md.  Ch.  303, 
as  to  where  evidence  will  be  allowed  to  be  taken  after  publication. 


OF    EVIDENCE.  725 

mode  of  obtaining  permission  to  examine  witnesses  after 
publication  is  by  a  distinct  motion  before  the  hearing; 
but  if  the  necessity  is  not  sooner  discovered,  the  cause 
may  be  directed  at  the  hearing  to  stand  over,  with  liberty 
to  exhibit  interrogatories  to  supply  the  defect.  Orders 
have  occasionally  been  made  for  a  reference  to  the  Master 
where  such  course  has  not  been  resisted,  but  such  a  refer- 
ence is  in  truth  a  substitution  of  the  Master  for  the  Court 
to  decide  on  the  evidence  in  the  cause,  and  the  more  regu- 
lar course  is  by  leave  to  exhibit  interrogatories. (y) 

The  only  exceptions  to  the  system  of  taking  evidence 
on  written  interrogatories  and  before  publication,  are  in 
the  case  of  documents  in  the  custody  of  a  public  officer, 
which  are  proved  by  the  officer's  testimony  to  that  fact, 
and  of  *documents,  the  authenticity  of  which  is  r:;: 070-1 
not  impeached,  and  which  only  require  the  proof 
of  handwriting,  or  the  evidence  of  an  attesting  witness. 
In  these  cases  interrogatories  may  be  dispensed  with,  and 
the  evidence  given  by  affidavit  at  the  hearing,  a  method 
recently  substituted  for  the  former  one,  of  a  viva  voce  ex- 
amination of  the  witness.  This  exception  does  not  apply 
where  the  authenticity  of  the  document  is  impeached,  or 
where  more  than  the  mere  handwriting  or  execution  must 
be  proved,  e.  (/.,  in  proving  a  will  of  real  estate,  where  not 
only  the  execution  but  the  sanity  of  the  testator  must 
necessarily  be  shown,  or  in  proving  the  execution  of  a 
deed  where  a  particular  form  of  execution  is  requisite 
In  such  cases  proof  by  affidavit  is  not  available,  but  the 

».  Walmsley,  1  M.  &  C.  361 ;  Hughes  v.  Eades,  1  Hare  486  ;  Woodgate  v. 
Field,  2  Id.  211 ;  Attorney-General  r.  Severne,  1  Coll.  313 ;  Cass  r.  Cass, 
4  Hare  278. 

(y)  Hughes  v.  Eades,  1  Hare  486 ;  Lechmere  f.  Brasier,  2  Jac.  &  W. 

288. 


726  ADAMS*S    DOCTRINE    OF    EQUITY. 

evidence  must  be  taken  on  interrogatories  with  the  regu- 
lar opportunity  to  cross-examine.  (.?)  ^ 

After  publication  has  passed,  it  is  the  plaintiff's  duty 
to  set  down  the  cause  for  hearing,  and  to  serve  a  siihjjoena 
to  hear  judgment,  {a)  If  he  fails  to  do  so  in  proper  time, 
the  defendant  may  move  to  dismiss  the  bOl  for  want  of 
prosecution,  or  he  may  set  the  cause  down  at  his  own  re- 
quest, and  serve  a  subpoena  to  hear  judgment  on  the  plain- 
tiff. Formerly  the  plaintiff  might,  at  any  time  before  the 
decree,  dismiss  the  bill  upon  payment  of  costs,  as  a  matter 
•of  course,  without  prejudicing  his  right  to  file  a  new  bill 
for  the  same  matter.^  But  now,  if  after  the  cause  is  set 
down,  the  bill  is  dismissed,  either  on  the  plaintiff's  own 
application  or  by  reason  of  his  default  when  the  cause  is 
called  on  to  be  heard  in  Court,  such  dismissal  is  equivalent 
to  a  dismissal  on  the  merits,  and  may  be  pleaded  in  bar  to 
another  suit  for  the  same  matter,  [h) 

(2)  43d  Order  of  August,  1841  ;  Maber  v.  Hobbs,  1  Y,  &  C.  585 ;  Attor- 
ney-General V.  Pearson,  7  Sim.  309  ;  Brace  v.  Blick,  Id.  619 ;  Lake  v.  Skin- 
ner, 1  Jac.  &  W.  9. 

(al  2  Uan.  Ch.  P.  955,  960.  (6)  Ord.  May,  1845,  cxvii. 

^  See,  on  this  subject,  3  Greenl.  Ev.,  s.  840;  Gafney  v.  Reeves,  6  Ind. 
71.  In  New  York,  if  a  document  intended  to  be  produced  in  a  deed  re- 
quiring proof  by  a  witness,  or  a  certified  copy  of  a  record  which  requires 
the  examination  of  a  witness  to  prove  it  genuine,  the  party  must  prove  it 
in  the  usual  way  before  the  examiner,  or  must  obtain  an  order  for  leave 
to  prove  it  at  the  hearing,  although  it  is  set  out  or  referred  to  in  the  plead- 
ings :  Pardee  v.  De  Gala,  7  Paige  135. 

Where  an  exhibit  in  a  bill  was  alleged  to  be  well  known  to  the  defend- 
ant, and  to  be  genuine,  and  this  allegation  was  not  denied,  the  exhibit  was 
taken  at  the  hearing  to  be  genuine  :  Armitage  v.  Wickliffe,  12  B.  Monr. 
488. 

"  The  propriety  of  permitting  a  complainant  to  dismiss  his  bill  without 
prejudice,  rests  in  the  sound  discretion  of  the  court ;  and  is  to  be  exercised 
with  reference  to  the  rights  of  both  parties  :  Conner  v.  Drake,  1  Ohio  St. 
N.  S.  166.     See  also,  ante,  347,  and  notes. 


OF  THE  HEARING  AND  DECREE.       727 


^CHAPTER    VII.  [*374] 

OF    THE    HEARING    AND   DECREE. 

At  the  hearing  of  the  cause  the  pleadings  and  evidence 
are  stated,  and  the  Court  makes  its  decree.  If  the  de- 
fendant appears,  it  is  an  ordinary  decree ;  if  he  does  not 
appear  at  the  hearing,  it  is  a  decree  by  default ;  {a)  and  if 
he  has  never  appeared  in  the  suit,  or  if  after  appearance, 
he  has  neglected  to  answer,  it  is  a  decree  joro  confesso.{b) 
The  minutes  of  the  decree  are  then  prepared  by  the  re- 
gisti'ar,  and  delivered  by  him  to  the  parties.  If  it  be 
doubted  whether  they  correctly  express  the  judgment  of 
the  Court,  they  may  be  discussed  either  on  a  motion  to 
vary  them,  or  by  obtaining  leave  to  have  the  cause  spoken 
to  on  minutes.  After  the  minutes  have  been  finally  set- 
tled the  decree  is  drawn  up,  passed,  and  entered.  The 
only  remaining  step  is  the  enrolment  of  the  decree,  which 
renders  it  conclusive  in  the  Court  of  Chancery,  and  pre- 
cludes any  subsequent  variation  in  its  terms  except  by  an 
appeal  to  the  House  of  Lords,  (c) 

The  practical  details  of  procedure  in  preparing  a  decree 
are  not  the  subjects  of  our  present  consideration,  which 
will  be  devoted  rather  to  the  nature  of  decrees  themselves. 

(a)  With  respect  to  decrees  by  default,  see  44feh  Order  of  August,  1841, 
and  1  Smith  Ch.  P.  254 ;  2  Dan.  Ch.  P.  990. 

(6)  With  respect  to  decrees  pj-o  confesso,  see  11  Geo.  4  &  1  Wm.  4,  c. 
36 ;  3  &  4  Vict.  c.  94  ;  4  &  5  Vict.  c.  52 ;  9th.  Order  of  August,  1841  ;  Or- 
ders of  May,  1845,  Ixsvi.-xcii. ;  1  Smith  Ch.  P.  231  ;  1  Dan.  Ch.  P.  479. 

(c)  2  Dan.  Ch.  P.  c.  xxiv. 


728        ADAMs's  DOCTRINE  OF  EQUITY. 

\'*^7'V\  *Decrees,  considered  in  this  light,  will  be  di- 
vided into  Preliminary  and  Final.  The  prelimi- 
nary decree  provides  for  the  investigation  of  questions 
which  are  material  either  in  determining  on  subsequent 
steps,  or  in  deciding  the  issue  between  the  parties.^  The 
final  decree,  called  the  Decree  on  Further  Directions,  or 
on  the  equity  reserved,  (c?)  disposes  ultimately  of  the  suit. 
The  causes  which  create  a  necessity  for  a  preliminary 
decree  are  four  in  number;  viz.,  1.  That  in  the  course  of 
the  suit  a  dispute  has  arisen  on  a  matter  of  law,  which 
the  Court  is  unwilling  to  decide ;  2.  That  a  similar  dispute 
has  arisen  on  a  matter  of  fact ;  3.  That  the  equity  claimed 
is  founded  on  an  alleged  legal  right,  the  decision  of  which 
the  Court  of  Chancery  declines  to  assume ;  and  4 .  That 
there  are  matters  to  be  investigated,  which  although  with- 
in the  province  of  the  Court,  are  such  as  the  presiding 
judge  cannot  at  the  hearing  effectually  deal  with.  To 
obviate  these  impediments  the  preliminary  decree  directs, 
1.  A  case  for  a  Court  of  law;  2.  An  issue  for  a  jury;  3. 
An  action  at  law,  to  be  determined  in  thq  ordinary  course ; 
or  4.  A  reference  to  one  of  the  Masters  of  the  Court,  to 
acquire  and  impart  to  it  the  necessary  information.  Each 
of  these  methods  of  inquiry  may  be  also  adopted  on  in- 
terlocutory applications  by  motion  or  petition,  (e)  but,  as  a 

(d)  Bruin  v.  Knott,  12  Sim.  453. 

(e)  Ansdell  v.  Ansdell,  4  M.  &  C.  449 ;  Lancashire  v.  Lancashire,  9 
Beav.  259. 

*  A  decree  in  Chancery  which  leaves  the  equity  of  the  case,  or  some  ma- 
terial question  connected  with  the  merits,  for  future  determination,  is  an 
interlocutory,  and  not  a  final  decree  :  Teafi"?;.  Hewitt,  1  Ohio  St.  N.  S.  511. 
See  also,  Dabbs  v.  Dabbs,  27  Ala.  646  ;  Humphrey  v.  Foster,  13  Gratt. 
653  ;  Re  Colom,  3  Md.  Ch.  278  ;  Hudson  v.  Kline,  9  Gratt.  379  ;  Harrison 
V.  Rush,  15  Mo.  175 ;  Verden  v.  Coleman,  18  How.  U.  S.  86  ;  Ayres  v. 
Carver,  17  Id.  391 ;  Craighead  v.  Wilson,  18  Id.  199;  Wilhelm  v.  Caylor, 
32  Md.  151. 


OF  THE  HEARING  AND  DECREE.       729 

part  of  the  regular  proceedings  of  the  Court,  they  prop- 
erly occur  under  the  preliminary  decree,  and  will  be  now 
most  fitly  considered. 

1.  A  case  for  the  opinion  of  a  Court  of  law  is  directed, 
where  a  question  of  law  arises  incidentally  in  a  suit. 
The  direction  is  not  made  necessary  by  any  want  of  juris- 
diction ;  for,  subject  to  any  restraint  which  its  own  dis- 
cretion may  impose,  the  Court  has  jurisdiction  to  decide 
every  question,  whether  of  law  or  fact,  incidentally 
brought  before  it.  If,  however,  a  doubtful  question  of 
law  arises,  which  can  be  *efrectually  separated  ra-.o'ja-t 
from  the  equitable  matter,  its  ordinary  practice 

is  to  direct,  on  the  application  of  either  party,  (/)  that  a 
case  may  be  made  for  the  opinion  of  the  common  law 
Court,  reserving  its  decision  on  the  consequent  equities 
until  after  the  judges  shall  have  given  their  certificate. 

The  certificate  of  the  judges  is  usually  adopted  by  the 
Court,  and  a  decree  made  in  conformity  with  it.  But  it 
is  not  absolutely  binding ;  and  if  the  judge  in  equity  be 
still  in  doubt,  he  may  return  the  matter  for  reconsidera- 
tion to  the  same,  or  to  another  Court  of  law ;  or  may,  if 
he  think  fit,  decide  in  opposition  to  the  certificate. (^)^ 

2.  An  issue  is  directed  where  an  incidental  question  of 
facts  is  so  involved  in  doubt  by  conflicting  or  insufficient 
evidence  that  the  Court,  considering  the  inefficacy  of 
written  testimony,  is  desirous  of  referring  it  to  the  verdict 

ij")  Morrice  v.  Langham,  11  Sim.  280. 

ig)  Lansdowne  r.  Lansdowne,  2  Bligh.  0.  S.  86  ;  Spry  e.  Bromfield,  12 
Sim.  75 ;  Muddle  r.  Fry,  Mad.  &,  G.  270 ;  Northam  Bridge  Company  v. 
Southampton  Railway  Company,  11  Sim.  42. 

^  The  practice  of  stating  cases  for  the  opinion  of  a  court  of  law  is  now 
abolished :  Stat.  15  &  IG  Vict.  c.  86,  s.  61 ;  25  &  26  Vict.  c.  42,  a.  1 ; 
Daniell's  Chan.  Prac.  1121. 


730  ADAMS'S    DOCTRINE    OF    EQUITY. 

of  a  jury.(/i)  It  can,  however,  only  be  adopted  where 
the  evidence  creates  a  doubt,  and  not  as  a  substitute  for 
omitted  evidence;  and,  therefore,  the  party  claiming  the 
issue  must  first  prove  his  case  by  regular  depositions. (x)^ 

(h)  Moons  V.  De  Bernales,  1  Russ.  301 ;  Lloyd  v.  Wait,  1  Ph.  61. 
(i)  Clayton  v.  Meadows,  2H.  29;  Whitaker  v.  Newman,  2  Id.  302. 

^  See,  on  this  subject,  Daniell's  Chan.  Prac.,  ch.  xxvi.,  s.  1.  Where  in  a 
suit  in  equity  there  is  no  conflict  of  testimony,  but  a  simple  failure  to 
prove  material  facts,  it  is  improper  to  direct  an  issue :  Kearney  v.  Har- 
rell,  5  Jones  Eq.  199  ;  and  if  in  such  case  there  is  a  verdict  on  the  issue  in 
favor  of  the  complainant,  the  decree  should  nevertheless  be  for  the  dis- 
missal of  the  bill :  Reed  v.  Cline,  9  Gratt.  136 ;  Wise  v.  Lamb,  Id.  294. 
An  issue  should  not,  moreover,  be  directed  where  the  truth  of  the  facts 
can  be  sufficiently  and  satisfactorily  ascertained  by  the  court  itself:  Baker 
17.  Williamson,  2  Penn.  St.  116  ;  Johns  v.  Erb,  5  Id.  237.  A  chancellor 
may  decide  every  question  of  fact  himself;  but  any  question  he  considers 
very  doubtful,  he  may  and  should  refer  to  a  jury.  But  the  verdict  is  to 
satisfy  the  conscience  of  the  chancellor,  and  if  he  is  not  satisfied  with  it, 
he  should  disregard  it;  on  the  other  hand,  if  he  concurs  with  the  jury,  or 
if  his  mind  still  oscillates,  he  should  allow  the  verdict  to  be  decisive :  Lee 
V.  Beatty,  8  Dana  207.  The  practice  of  referring  doubtful  questions  to  a 
jury  is  not  confined  to  those  cases  where  witnesses  are  to  'be  introduced, 
but  when  the  chancellor  is  perplexed  with  doubtful  questions  of  fact,  he 
may  have  the  aid  of  a  jury,  as  well  where  the  decision  must  be  upon  the 
written  evidence  in  the  record,  as  where  oral  testimony  is  to  be  intro- 
duced:  Id.  212.  The  submission  of  the  entire  case  to  a  jury  is  contrary 
to  practice  :  Milk  v.  Moore,  39  111.  584. 

In  many  of  the  United  States,  and  in  the  Federal  judicature,  however, 
the  trial  by  jury  is  secured  to  suitors,  by  constitutional  or  statutory  pro- 
.  visions,  in  such  a  manner  that  even  where  it  is  not  an  express  right,  the 
discretion  of  a  Court  of  equity  in  granting  an  issue  in  a  case  proper  for 
a  jury,  has  become  merely  nominal.  And  in  nearly  all  the  states,  it  is  at 
least  very  doubtful  whether  a  verdict  on  an  issue  is  not  equally  binding 
with  that  in  a  suit  at  law,  and  subject  only  to  the  same  revisory  power 
which  is  exercised  in  granting  new  trials  in  other  cases.  See,  on  this  sub- 
ject, 3  Greenl.  Ev.,  part  vi.,  ch.  1,  g  261,  et  seq  ,  ^  339  ;  IIofi"man  v.  Smith, 
1  Md.  475  ;  Thomason  v.  Kennedy,  3  Rich.  Eq.  440  ;  Harrison  v.  Rowan, 
4  Wash.  C.  C.  32 ;  Pleasants  v.  Ross,  1  Wash.  (Va.)  156  ;  Marsden  v. 
Brackett,  9  N.  H.  336 ;  Charles  R.  Bridge  v.  Warren  Bridge,  7  Pick.  344 ; 
Parsons  v.  Bedford,  3  Peters  433  ;  Ward  v.  Hill,  4  Gray  593  ;  Drope  v. 
Miller,  1  Hempst.  49  ;  Lapreese  v.  Fall,  7  Ind.  692 ;  see,  however,  Baker 


OF     THE    HEARING    AND    DECREE.  731 

The  form  of  an  issue  was  formerly  that  of  an  action  on  a 
wager,  assumed  to  have  been  made  respecting  the  fact  in 
dispute ;  but  this  fiction  is  now  dispensed  with,  and  the 
question  may  be  referred  to  the  jury  in  a  direct  form.(^) 

The  result  of  an  issue  is  not  necessarily  a  mere  general 
verdict,  but  liberty  may  be  given  to  take  a  special  verdict, 
or  a  special  case.(/)  And  a  direction  is  frequently  given, 
that  if  the  substance  of  the  issue  is  found,  but  with 
special  circumstances,  which  may  be  material  in  measuring 
the  relief,  the  special  matter  shall  be  endorsed  on  the 
posted,  (m) 

*The  Court  will  also  provide  that  the  issue  r^o'-i-i 
shall  effectually  raise  the  real  question,  cleared 
of  all  extrinsic  matter,  by  directing  all  requisite  admis- 
sions to  be  made  ;  and  will  secure  its  satisfactory  investi- 
gation, by  compelling  the  parties  to  produce  at  the  trial 
all  material  documents  in  their  possession  or  power.^ 

The  privileges  of  an  heir-at-law  and  of  a  rector  or  vicar, 
in  suits  for  establishing  a  will  or  modus,  to  demand  an 
issue  as  a  matter  of  right,  have  already  been  considered 
in  treating  of  the  jurisdiction  for  such  establishment,  (w) 
With  these  exceptions,  the  granting  of  an  issue  is  discre- 
tionary with  the  Court,  and  the  attendant  expense  and 
delay  will  only  be  incurred  when,  in  the  exercise  of  a 
sound  discretion,  it  is  deemed  necessary,  (o)'^ 

{k)  8  &  9  Vict.  c.  109,  19.  [l)  Clayton  v.  Nugent,  1  Coll.  362. 

(m)  White  v.  Lisle,  3  Sw.  345. 

(n)  Supra,  Tithes ;  Testamentary  Assets. 

(o)  Short  V.  Lee,  2  J.  &  W.  495  ;  Hampson  v.  Hampson,  3  Ves.  &  B.  43. 

r.  Williamson,  2  Penn.  St.  116  ;  Johns  v.  Erb,  5  Id.  237  ;  and  in  New  York, 
before  the  Rev.  Code,  Patterson  r.  Ackerson,  1  Edw.  Ch.  96. 

^  See,  on  this  subject,  3  Greenl.  Ev.,  §  377,  &c. ;  Apthorp  v.  Comstock,  2 
Paige  482 ;  Baker  v.  WilUamson,  2  Penn.  St.  116  ;  Johns  v.  Erb,  5  Id.  237. 

^  Scheetz's  Appeal,  35  Penn.  St.  94 ;  Blake  v.  Shreve,  2  Beas.  456 ; 
Black  V.  Lamb,  1  Id.  108  ;  Kirkpatrick  v.  Atkinson,  1 1  Rich.  Eq.  27. 


732  ADAMS's     DOCTRINE    OF    EQUIT7. 

The  same  discretion  is  exercised  after  a  verdict  has 
been  returned.  The  object  of  an  issue,  like  that  of  a 
case,  is  not  to  bind  the  Court,  but  to  satisfy  its  conscience. 
If,  therefore,  the  verdict,  coupled  with  the  information  of 
the  judge's  notes,  -does  not  afford  satisfaction,  a  new  trial 
will  be  directed,  although  there  be  no  surprise  or  fraud, 
nor  manifest  miscarriage,  and  the  verdict  be  one  which  at 
common  law  would  be  undisturbed,  (jt?)  And  even  though 
no  new  trial  is  sought,  yet  when  the  cause  is  brought  on 
for  further  directions,  the  Court,  if  it  thinks  that  the  issue 
as  tried  does  not  answer  the  purpose  intended,  may  direct 
a  new  one  to  be  framed ;  or  may,  on  reconsideration  of 
the  evidence,  decide  at  once  against  the  verdict.  (5-)^  In 
suits  relating  to  land,  and  seeking  to  bind  the  inheritance, 
a  direction  for  a  new  trial  is  not  unfrequent,  though  the 
original  verdict  may  be  free  from  objection,  but  it  is  not  a 
matter  of  right,  (r) 

r*^7S1  *^'  "^^  action  at  law  is  directed  where  the 
equity  is  based  on  a  disputed  legal  right,  but  the 
trial  of  such  right  at  law  is  prevented  either  by  equitable 
impediments,  which  the  Court  is  asked  to  remove,  or  by 
the  mere  pendency  of  the  suit  itself;  e.  g.,  where  an  heir- 
at-law  is  unable  to  bring  an  ejectment,  by  reason  of  an 
outstanding  mortgage  or  term,  or  where  the  bill  seeks 
an  injunction  against  the  infringement  of  a  disputed 
patent.^ 

[p)  Bootle  V.  Blundell,  19  Ves.  500;  Northam  Bridge  Company  «.  South- 
ampton Railway  Company,  11  Sim.  42;  East  India  Company  r.  Bazett, 
Jac.  81. 

{q)  Armstrong  v.  Armstrong,  3  M.  &  K.  45. 

(r)  Locke  v.  Colman,  2  M.  &  C.  42  ;  White  v.  Wilson,  13  Ves.  88  ;  Baker 
».  Hart,  3  Atk.  542;  Wilson  ».  Beddard,  12  Sim.  28. 

'  But  see  ante,  note  to  p.  376.  See  also  Austin  v.  Baintor,  50  III.  308  ; 
Lowe  V.  Traynor,  6  Cold.  (Tenn.)  633. 

*  See  Daniell's'Chan.  Prac,  ch.  xxvi.,  section  2. 


OF  THE  HEARING  AND  DECREE.       733 

In  this  class  of  cases  there  is  not  a  mere  point  of  law 
or  fact  incidentally  in  dispute,  as  to  which  the  Court,  for 
its  own  satisfaction,  seeks  the  aid  of  another  tribunal ; 
but  there  is  a  general  question  of  right,  determinable  as 
such  by  the  ordinary  Courts,  and  requiring  a  decision, 
according  to  the  course  of  those  Courts,  both  of  disputed 
facts  and  of  the  law  as  applicable  thereto.  The  general 
rule,  therefore,  is  that  where  the  foundation  of  a  suit  is  a 
legal  demand,  on  which  the  judgment  of  a  Court  of  law, 
whether  obtained  on  a  verdict  or  in  any  other  shape, 
ought  to  be  conclusive,  the  Court  of  Chancery  will  not 
direct  a  case  or  issue,  but  will  either  order  an  action  to  be 
brought,  providing  that  the  term  or  other  like  impediment 
shall  not  be  set  up  as  a  defence  at  law,  or  will  retain  the 
bill  for  a  limited  period,  with  liberty  for  the  plaintiff  to 
proceed  at  law.(s)  The  Court  will  not  in  general  retain 
the  bill  unless  it  thinks  that,  if  the  action  succeeds,  a 
valid  equity  will  exist ;  but  the  retainer  is  not  conclusive 
on  the  point,  and  the  decree,  on  further  directions,  may 
be  against  the  plaintiff.  (^)^  If  there  are  any  persons 
equitably  interested,  and  who  cannot  therefore  be  par- 
ties at  law,  they  will  have  liberty  given  them  to  attend 
the  trial,  and  to  make  such  defence  as  they  may  be  ad- 
vised. Provision  will  also  be  made  for  a  satisfactory 
trial,  by  directing  admissions  by  the  parties,  and  produc- 

(«)  Pemberton  v.  Pemberton,  13  Ves.  298;  Bootle  v.  Blundell,  19  Id. 
500  ;  Waterford  v.  Knight,  11  Clarke  &  F.  662  ;  ButUn  r.  Masters,  2  Ph. 
290.  [t)  Harmood  v.  Oglander,  6  Ves.  225. 

^  See,  on  this  point,  Ches.  &  Ohio  Canal  v.  Young,  3  Md.  480. 

"Where  a  bill  has  been  ordered  to  be  retained  for  a  twelvemonth,  with 
liberty  for  the  plaintiff  to  bring  an  action,  the  Court  will  extend  the  time, 
if  satisfied  that  there  is  a  bond  Jide  intention  to  proceed  with  the  action, 
and  there  has  been  promptness  in  bringing  the  matter  to  an  adjudication: 
Farina  v.  Silverlock,  26  L.  J,  Ch.  790. 


734  ADAMS's    DOCTRINE    OF    EQUITY. 

tion  of  documents,  as  in.  the  case  of  issues.  But  the 
Court  of  Chancery  assumes  no  jurisdiction  over  the  action  j 
r*^701  ^^^  ^^  ^either  party  be  dissatisfied  with  the  re- 
sult, a  new  trial  must  be  moved  for  in  the  Court 
of  law. 

4.  A  reference  to  the  Master  is  generally  made  for  one 
of  the  three  following  purposes,  viz.,  the  protection  of 
absent  parties  against  the  possible  neglect  or  malfeasance 
of  the  litigants ;  the  more  effectujil  working  out  of  de- 
tails, which  the  judge  sitting  in  Court  is  unable  to  inves- 
tigate ;  and  the  supplying  defects  or  failures  in  evidence.^ 
And  it  differs  materially  from  a  case,  an  issue,  or  an 
action,  because  these  steps,  when  directed,  are '  ra-ther 
transfers  to  another  tribunal  than  steps  of  procedure  in 
the  Court  itself.  But  a  reference  to  a  Master  is  an 
ordinary  step  in  the  cause,  and  comparatively  few  causes 
of  importance  are  decided  without  one  or  more  such 
references. 

1.  The  reference  for  the  protection  of  absent  parties  is 

^  The  Master's  office  is  a  branch  of  the  Court :  Stewart  v.  Turner,  3 
Edw.  Ch.  458.  The  master,  in  his  ministerial  character,  is  bound  strictly 
to  follow  the  instructions  of  the  Court :  Fenwicke  v.  Gibbes,  2  Dessaus. 
629.  A  reference  will  not  be  ordered  to  inquire  relative  to  a  fact  consti- 
tuting the  gist  of  the  controversy,  and  put  in  issue  by  the  pleadings : 
.  Lunsford  v.  Bostion,  1  Dev.  Eq.  483 ;  see  Gilmore  v.  Gilmore,  40  Maine  50. 
Where  the  evidence  in  a  case  is  all  written,  and  a  decree  thereon  can  be 
rendered  without  difficulty,  a  reference  to  a  master  is  unnecessary :  Levert 
V.  Redwood,  9  Porter  79.  As  to  the  practice  in  taking  testimony  on  an 
order  of  reference  to  a  master,  see  Renisen  v,  Remscn,  2  Johns.  Ch.  496 ; 
Gass  V.  Stinson,  2  Sumn.  G05  ;  Jenkins  v.  Eldredge,*3  Story  299  ;  Hollister 
V.  Barkley,  11  N.  H.  501 ;  Benson  v.  Le  Roy,  1  Paige  122;  McDougald  v. 
Dougherty,  11  Ga.  570 ;  Dougherty  v.  Jones,  Id.  432;  Gilmore  v.  Gilmore, 
40  Maine  50. 

See,  on  the  subject  o^  references  to  and  proceedings  before  master,  Rules 
U.  S.  Courts  in  equity,  No.  Ixxiii.  et  seq. ;  Penna.  No.  Ixii.  et  seq. ;  3 
Greenl.  Evid.,  ^332,  et  seq. 


OF  THE  HEARING  AND  DECREE.       735 

made  where  a  claim,  or  the  possibility  of  a  claim,  to  the 
property  in  suit  belongs  to  creditors  or  next  of  kin,  or 
other  persons  entitled  as  a  class,  so  that  it  is  uncertain  at 
the  hearing  whether  they  are  all  before  the  Court.  In 
order  to  remove  this  uncertainty,  a  reference  is  made  to 
the  Master  to  ascertain  the  fact  before  any  step  is  taken 
for  ascertaining  or  distributing  the  fund,  [ti)  And,  on  the 
same  principle,  if  a  proposal  of  compromise  or  of  arrange- 
ment by  consent  is  made  where  any  of  the  parties  are 
infants  or  femes  cove?'t,  and  therefore  unable  to  exercise 
a  discretion,  the  Court,  before  sanctioning  the  proposal, 
will  ascertain  by  a  reference,  whether  it  is  for  their 
benefit.^ 

2.  A  reference  for  the  working  out  of  details  is  prin- 
pally  made  in  matters  of  account,  when  the  Court  de- 
clares that  the  account  must  be  taken,  and  refers  it  to 
the  Master  to  investigate  the  items.^  The  same  principle 
applies  to  the  investigation  of  a  vendor's  title ;  for  the 
Court  cannot  undertake  to  peruse  the  abstract,  and  that 
duly  devolves  on  the  Master.^  In  like  manner  it  will  be 
referred  to  the  Master  to  settle  conveyances  or  other 

(u)  Dan.  Ch.  P.  683  ;  Fisk  v.  Norton,  2  Hare  381. 

'  Where  a  suit  is  instituted  on  behalf  of  an  infant  by  a  prochein  ami, 
the  Court,  on  a  suggestion  of  its  being  improperly  instituted,  will  refer  it 
to  a  master,  to  inquire  into  the  circumstances,  and  to  report  whether  the 
suit  is  for  the  benefit  of  the  infant :  Garr  v.  Drake,  2  Johns.  Ch.  542. 

^  See  Ilart  v.  Ten  Eyck,  2  Johns.  Ch.  513  ;  Consequa  v.  Fanning,  3 
Id.  591  ;  Barrow  v.  Rhinelander,  Id.  614;  Maury  v.  Lewis,  10  Yerg.  115. 

'  And  where  the  plaintiff,  in  a  bill  for  specific  performance,  shows  his 
right  to  a  conveyance,  but  the  defendant  has,  by  sale  or  otherwise,  put  it 
out  of  his  power  to  convey,  it  may  be  referred  to  a  Master  to  ascertain  the 
damages:  Woodcock  v.  Bennet,  1  Cowen  711.  Upon  a  bill  for  specific  per- 
formance, the  title  will  not  be  referred,  where  the  nature  of  it  is  distinctly 
seen :  Wilbanks  v.  Duncan,  4  Dessaus.  536 ;  Dominick  v.  Michael,  4  Sandf. 
S.  C.  394  ;  see  ante  84,  notes. 


736  ADAMS's    DOCTRINE    OF    EQUITY. 

pjjjqon-i  deeds,  to  superintend  *sales,  to  appoint  trustees, 
receivers,  and  guardians,  and  so  forth. 

For  tlie  same  reason,  the  Masters  are  deputed,  to  judge 
of  impertinence  or  insufficiency  in  pleadings,  the  decision 
of  which  must  depend  on  a  minute  examination  of  their 
details.  And  it  is  now  ordered  by  statute  that  they  shall 
determine  all  applications  for  time  to  plead,  answer,  or 
demur,  for  leave  to  amend  bills,  for  enlarging  publication, 
and  all  such  other  matters  relating  to  the  conduct  of  suits, 
as  the  Lord  Chancellor,  with  the  advice  and  assistance  of 
the  Master  of  the  Rolls  and  Vice-Chancellor,  or  one  of 
them,  shall  by  any  general  order  or  orders  direct,^  subject 
to  an  appeal,  by  motion  to  the  Lord  Chancellor,  Master 
of  the  Rolls,  or  Vice-Chancellor,  but  without  any  further 
appeal,  (v) 

On  bills  for  a  partition,  for  settling  boundaries,  and  for 
assignment  of  dower,  the  appointment  is  not  made  by 
reference  to  a  Master,  but,  in  analogy  to  the  process  at 
law,  to  commissioners  specially  appointed,  reserving  all 
further  directions  until  after  their  return. 

Formerly  the  mode  of  directing  these  accounts  and  in- 
quiries was  by  a  preliminary  decree  at  the  hearing  of  the 
cause,  reserving  the  ultimate  decision  until  after  a  report. 
In  the  case  of  a  bill  for  specific  performance,  when  the 
title  only  is  in  dispute,  it  has  long  been  the  practice  to 
refer  it  on  motion,  either  before  or  after  answer,  (e^)  But 
in  the  generality  of  cases  the  direction  was  delayed  till 
the  hearing,  and  the  consequent  necessity  of  two  succes- 
sive decrees  was  frequently  productive  of  needless  delay 
and  expense. 

(r)  3  &  4  Wm.  4,  c.  94,  s.  13. 

(w)  Balmanno  v.  Lumley,  1  Yea.  &  B.  224  ;  Matthews  v.  Dana,  3  Mad. 
470. 


OF  THE  HEARING  AND  DECREE.       737 

In  order  to  remedy  this  evil,  it  has  been  ordered*  that 
"in  all  cases  in  which  it  shall  appear  that  certain  prelimi- 
nary accounts  and  inquiries  must  be  taken  and  made, 
before  the  rights  and  interest  of  the  parties  to  the  cause 
can  be  ascertained,  or  the  questions  therein  arising  can  be 
determined,  the  plaintiff  shall  be  at  liberty,  at  any  time, 
*after  the  defendants  shall  have  appeared  to  the  r*oo-|-| 
bUl,  to  move  the  Court,  on  notice,  that  such  in- 
quiries and  accounts  shall  be  made  and  taken,  and  that 
an  order  referring  it  to  the  Master  to  make  such  inqui- 
ries, and  take  such  accounts,  shall  thereupon  be  made, 
without  prejudice  to  any  question  in  the  cause,  if  it  shall 
appear  to  the  Court  that  the  same  will  be  beneficial  to 
such  (if  any)  of  the  parties  to  the  cause  as  may  not  be 
competent  to  consent  thereto,  and  that  the  same  is  con- 
sented to  by  such  (if  any)  of  the  defendants,  as,  being 
competent  to  consent,  have  not  put  in  their  answers,  and 
that  the  same  is  consented  to  by,  or  is  proper  to  be  made 
upon,  the  statements,  contained  in  the  answers  of  such  (if 
any)  of  the  defendants  as  have  answered  the  bill."  (a;) 

The  order,  however,  only  applies  where  it  is  obvious 
that  the  accounts  and  inquiries  must  be  directed  at  the 
hearing,  as  incidental  to  the  admitted  allegations,  of  the 
bill.  If,  in  order  to  warrant  them,  it  is  necessary  that 
parts  of  the  bill  should  be  established  by  evidence,  the 
order  does  not  apply,  e.  g.,  where  a  person  alleging  him- 
self to  be  next  of  kin,  files  his  bill  against  the  adminis- 
trator, who  does  not  admit  that  he  sustains  the  character. 
In  this  case  an  inquiry  as  to  the  other  next  of  kin,  and 
an  account  of  the  estate,  cannot  be  directed  on  motion. 
The  same  principle  was  followed  in  a  suit  for  specific 

[x)  5th  Order  of  May,  1839. 
47 


738  ADAMS's    DOCTRINE    OF    EQUITY. 

performance,  where  the  purchaser  alleged  that  the  con- 
tract had  been  rescinded  through  the  vendor's  failure  in 
showing  title  by  a  specified  day.  The  vendor  moved  for 
the  ordinary  inquiry,  whether  he  could  make  a  good  title, 
and  when  first  such-  title  was  made,  without  prejudice  to 
any  question  in  the  cause.  But  it  was  refused,  because 
such  an  inquiry  assumed  that  a  title  shown  after  the  spe- 
cified time  would  be  available,  and  therefore  if  the  pur- 
chaser's objection  succeeded  at  the  hearing,  the  inquiry 
might  be  useless.  The  plaintiff  then  offered  to  take  an 
r*^821  i^^^i^y  whether,  on  the  day  of  the  alleged  *rescis- 
sion,  or  on  an  earlier  day,  a  good  title  had  been 
shown.  But  that  inquiry  was  also  refused,  because,  al- 
though in  any  view  of  the  case  an  afiirmative  answer 
would  decide  the  case,  yet,  if  the  purchaser's  objection 
were  overruled,  a  negative  one  would  lead  to  no  re- 
sult. (^) 

In  cases  not  falling  within  the  scope  of  that  order  the 
former  practice  still  continues. 

3.  The  third  class  of  cases  in  which  a  reference  to  the 
Master  is  made,  is  where  it  becomes  necessary'to  supply 
defects  or  failures  in  evidence.  It  has  been  already  men- 
tioned that  such  a  reference  is  occasionally  made  for  ascer- 
taining the  truth  of  an  allegation,  with  respect  to  which 
there  has  been  an  accidental  omission  of  evidence,  but 
that  such  course  is  not  strictly  regular.  The  circum- 
stances under  which  the  reference  would,  in  regular 
course,  be  made,  are  where  the  evidence  already  given 
has  induced  a  belief  in  the  Court  that  new  matter  might 
be  elicited  by  inquiry,  or  where  allegations  have  been 

{y)  Topham  v.  Lightbody,  1  Hare  289 ;  Curd  v.  Curd,  2  Id.  116  ;  Breeze 
».  English,  Id.  118 ;  CliflFord  v.  Turrell,  1  N.  C.  C.  138. 


OF  THE  HEARING  AND  DECREE.       739 

made  in  the  answer,  though  not  established  by  proof, 
which,  if  true,  would  be  material  to  the  cause,  (z) 

In  directing  a  reference  to  the  Master,  the  Court  pro- 
vides for  a  full  investigation  of  the  matter  referred,  by  a 
direction  that  the  parties  shall  produce,  on  oath,  all  docu- 
ments in  their  power,  and  shall  be  examined  on  interroga- 
tories as  the  Master  shall  direct,  (a)^  And  he  has  a  similar 
power  of  examining,  either  on  interrogatories  or  viva  voce, 
any  creditors  or  other  persons  who,  by  coming  in  to  claim 
before  him,  may  render  themselves  quasi  parties  to  the 
smt.(b) 

The  method  in  which  the  Master  proceeds  is  by  issu- 
ing warrants  from  time  to  time,  directing  all  parties  con- 
cerned to  attend  before  him  at  the  time  and  for  the  pur- 
poses *therein  mentioned.  The  proceedings  r*qoo-| 
under  a  warrant  may  be  attended  by  all  persons 
beneficially  interested,  whether  actual  parties  to  the  suit, 
or  such  as  have  become  quasi  parties  by  having  come  in 
and  established  a  claim,  whenever  the  object  is  such  as 
may  affect  their  interests,  or  increase  or  diminish  their 
proportion  in  the  fund.  And,  on  the  same  principle,  all 
such  persons  are  entitled  to  take  copies  of  any  written 
proceeding  brought  into  the  office,  or  of  any  part  thereof 
which  affects  their  interest. 

On  the  proceedings  being  thus  commenced,  all  the 
parties  who  take  an  active  part  in  the  inquiry  lay  before 
the  Master  written  narratives,  called  States  of  Facts,  of 
the  circumstances  on  which  they  respectively  rely ;  and 

(g)  Broadhurst  v.  Balguy,  1  N.  C.  C.  16  ;  Connop  v.  Hayward,  Id.  33  ; 
Miller  v.  Gow,  Id.  56;  McMahon  v.  Burchell,  2  Phill.  127. 
(o)  9th  Order  of  1828.  [b]  72d  Order  of  1828. 

*  As  to  the  Master's  power  of  examining  a  complainant,  see  McCrackan 
V.  Valentine,  5  Selden  (N.  Y.)  42. 


740  ADAMS's    DOCTRINE    OF    EQUITY. 

as  the  report  is  ultimately  formed  on  the  basis  of  these 
states  of  facts,  it  is  material  they  should  be  carefully 
drawn.  The  parties  then  proceed  to  support  them  by 
proof,  consisting,  first,  of  the  depositions,  affidavits,  and 
other  evidence  already  used  in  the  cause  ;(c)  and,  secondly, 
of  any  additional  evidence  which  may  be  produced  in  the 
office,  subject,  however,  to  the  restriction  that  a  witness 
who  has  been  already  examined  in  the  cause  cannot  be 
re-examined  before  the  Master  by  the  same  party  without 
leave  of  the  Court,  (c?)^  The  additional  evidence  thus 
brought  forward  ought  in  strictness  to  be  given  on  inter- 
rogatories or  viva  voce,{e)  but  it  is  usual  to  substitute 
affidavits  by  express  or  tacit  consent.^  Duriug  the  pro- 
gress of  the  inquiry,  the  several  states  of  facts  may,  from 
time  to  time,  be  amended,  or  new  ones  brought  in  and 
supported  by  further  evidence,  until  either  publication 
has  passed,  where  the  evidence  has  been  taken  on  inter- 
rogatories, or  the  warrant  has  been  issued  for  preparing 
the  report.  (/) 

r*S841        *After  the  warrant  for  preparing  the  report  no 
further  evidence  can  be  received,  but  the  Master 

-  (c)  65th  Order  of  1828. 

{d)  Willan  v.  Willan,  19  Yes.  590  ;  Rowley  v.  Adams,  1  M.  &  K.  545  ; 
Whit^ker  v.  Wright,  3  Hare  412 ;  England  v.  Downs,  6  Beav.  281. 
.  (c)  69th  Order  of  1828  ;  [Dougherty  v.  Jones,  11  Ga.  432. J 

(/)  Trotter  v.  Trotter,  5  Sim.  483 ;  Nelson  v.  Bridport,  6  Beav.  295  j 
67th  Order  of  1828. 

^  See  Remsen  ».  Remsen,  2  Johns.  Ch.  501.  If  the  defendant  wishes  to 
controvert  any  allegations  in  the  bill  he  shonld  put  them  in  issue  by  plea 
or  answer ;  and  neglectiog  this  he  is  precluded  from  introducing  evidence 
for  that  purpose  before  the  Master  on  reference :  Ward  v.  Jewett,  Walk. 
Ch.  45. 

*  See  Story  v.  Livingston,  13  Peters  359.  A  party  examined  before  a 
Master  has  a  right  to  demand  the  questions  in  writing ;  but  not  so  a 
witness  :  McDougald  v.  Dougherty,  11  Ga.  570. 


OF  THE  HEARING  AND  DECREE.       741 

will  proceed  to  settle  and  sign  his  report  on  the  evidence 
as  it  then  stands.  At  this  stage  of  the  proceedings,  and 
whilst  the  report  is  still  in  draft,  it  is  the  duty  of  any 
dissatisfied  party  to  lay  before  him  written  objections, 
specifying  the  point  in  which  he  considers  it  erroneous. 
If  that  be  not  done,  exceptions,  which,  as  we  shall  pre- 
sently see,  are  the  mode  of  contesting  it  before  the  Court, 
will  not  be  entertained.  The  exceptions,  when  taken, 
though  not  necessarily  identical  in  words,  must  in  sub- 
stance agree  with  the  objections,  and  the  practice  gene- 
rally is  to  prepare  the  objections  in  the  form  of  the  in- 
tended exceptions,  and,  on  their  disallowance,  to  convert 
them  into  exceptions.  If  the  objections  are  allowed  by 
the  Master,  he  will  alter  his  draft  accordingly;  and  it 
will  then  be  the  business  of  the  other  side  to  object,  as 
they  may  be  advised. 

When  the  Master  has  disposed  of  all  objections,  and 
come  to  a  conclusion  on  the  matters  referred,  he  settles 
and  signs  his  report,  and  such  report  is  then  filed.  The 
ordinary  mode  of  framing  a  report  is  to  refer  separately 
to  each  of  the  directions  in  the  decree,  and  then,  with 
respect  to  each  direction,  first  to  mentioji  on  what  evi- 
dence the  Master  has  proceeded,  {g)  and  then  to  state  the 
conclusion  at  which  he  has  arrived.  In  stating  his  con- 
clusion, he  should  so  far  detail  the  facts  which  warrant  it 
as  may  enable  the  Court  to  judge  of  its  correctness ;  and 
it  is  frequently  advantageous,  though  not  necessary,  that 
he  should  also  state  the  reasons  which  have  induced  his 
decision-  But  he  must  not  omit  the  conclusion  itself,  or 
state  evidence,  or  circumstances  which  are  presumptive 
evidence,  without  finding  whether  they  amount  to  a  sat- 

{g)  48th  Order  of  August,  1841 ;  In  re  Grant,  10  Sim,  573 ;  Meux  v. 
Bell,  1  Hare  93. 


742  ADAMS'S    DOCTRINE    OF    EQUITY. 

isfactory  proof.  (/^)  And  if  liberty  Ibe  given,  as  it  fre- 
P^ooc-i  quently  is,  *to  state  special  circumstances,  he 
should  state,  not  the  evidence,  but  the  facts 
proved,  as  on  a  special  verdict  at  law.  (2)^ 

If  any  of  the  inquiries  directed  by  the  decree  are  such 
as  cannot  conveniently  be  delayed  until  the  general  re- 
port, the  Master  may  make  a  separate  report,  (Zr)  which 
is  prepared,  disputed,  and  confirmed  in  the  same  maimer 
as  a  general  one;  the  only  difference  being  that  when  it 
is  intended  to  act  on  such  a  report,  the  cause  is  not  set 
down  for  further  directions,  but  a  petition  is  presented 
praying  such  directions 'as  are  consequent  on  the  separate 
report. 

Subject  to  this  right  of  making  separate  reports,  the 
rule  is,  that  a  Master's  report  must  dispose  of  all  matters 
referred,  either  by  actual  findings  on  each  section  of  the 
decree,  or  by  pointing  out  what  matters  of  reference  have 
been  waived,  and  what  have  been  disposed  of  by  separate 
reports;  and  the  omission  of  any  such  matters,  or  the  in- 
troduction of  any  matter  not  referred  to  him,  will  render 
his  report  erroneous.  (/) 

As  soon  as  the  Master's  report  has  been  filed,  the  next 
step  is  its  confirmation  by  the  Court. 

[h)  Lee  v.  Willock,-  6  Ves.  605  ;  Meux  v.  Bell,  1  Hare  91 ;  Chainper- 
toowne  v.  Scott,  4  Mad.  209. 

(i)  Marlborough  v.  Wheat,  1  Atk.  454. 

{k)  70th  Order  of  1831. 

{I)  Winter  v.  Innes,  4  M.  &  C.  101 ;  Jenkins  v.  Briant,  6  Sim.  605 ;  Gaylor 
V.  Fitzjohn,  1  Keen  469. 

^  Where  certain  facts  are  referred  to  the  decision  of  a  Master,  it  is  his 
duty  to  report  his  conclusions;  and  it  is  irregular  and  improper  for  him  to 
report  the  evidence,  without  the  special  direction  of  the  Court :  Matter  of 
Hemiup,  3  Paige  305;  Bailey  v.  Myreck,  52  Maine  132.  See,  in  Indiana, 
McKinney  v.  Pierce,  5  Ind.  422. 


OF    THE    HEARING    AND    DECREE.  743 

In  the  case  of  reports  under  orders  made  on  petition,  a 
petition  is  the  usual  mode  of  objection  and  confirmation,  (w) 
But  with  respect  to  reports  under  a  decree  or  decretal 
order,  the  regular  mode  of  confirmation  is  by  an  order  nisi, 
made  on  a  motion,  of  course,  or  petition  at  the  Rolls,  and 
du-ecting  that  the  report  shall  stand  confirmed,  "  unless 
the  defendant  shall,  within  eight  days  after  notice,  show 
good  cause  to  the  contrary."  If  no  cause  is  shown  within 
the  eight  days,  a  further  order  is  made  on  motion,  confirm- 
ing the  report  absolutely,  (w)^ 

If  any  of  the  persons  interested,  whether  actual  or 
quasi  ^parties,  are  dissatisfied  with  the  report,    r*oo^T 
they  may  file    exceptions  after  service  of  the 
order  nisi,  and  show  them  as  cause  against  its  being  made 
absolute. 

The  exceptions,  which,  like  the  pleadings  and  interro- 
gatories, require  the  signature  of  counsel,  are  a  written 
enumeration  of  the  alleged  errors,  and  of  the  corrections 
proposed ;  and  they  should  be  so  framed  as  not  merely  to 
allege  error  in  general  terms,  but  to  enable  the  Court  to 
decide  distinctly  on  each  point  in  dispute,  (o)^     If,  how- 

{m)  Empringham  v.  Short,  11  Sim.  78  ;  Ottey  v.  Pensam,  1  Hare  322; 
Beavan  r.  Gibert,  8  Beav.  308. 

(»)  2  Dan.  Ch.  P.  1227. 

(o)  Purcell  V.  McNamara,  12  Ves.  166  ;  Ballard  r.  White,  2  Hare  158  . 
Flower  v.  Hartopp,  6  Beav.  485  ;  Stocken  ».  Dawson,  2  Phill.  141. 

*  See  Hulbert  v.  McKay,  8  Paige  652. 

*  Story  r.  Livingston,  13  Peters  359:  Dexter  v.  Arnold,  2  Sumn.  108. 
The  proceedings  before  a  master  are  in  the  nature  of  an  informal  till  in 
equity,  and  the  supervisory  Court  will  not  interfere  to  correct  any  but 
substantial  defects:  McDougald  ».  Dougherty,  11  Ga.  570.  An  error  mus 
be  clearly  made  to  appear,  in  the  report,  before  the  Court  will  interfere, 
where  a  question  of  fact  was  submitted  to  the  master,  which  depended 
upon  the  credibility  of  witnesses :  Sinnickson  r.  Bruere,  1  Stockt.  (N.  J.) 
659  ;  Izard  v.  Bodine,  Id.  309  -,  Howe  v.  Russell,  36  Maine  115  ;  Miller  v. 


744  ADAMS's    DOCTRINE    OF    EQUITY. 

ever,  there  be  error  apparent  on  the  report,  as,  for  exam- 
ple, if  the  facts  stated  contradict  the  conclusion,  it  is 
unnecessary  to  except.^  And  even  if  the  facts  stated, 
though  not  contradicting  the  conclusion,  are  insufficient  to 
support  it,  the  Court  may,  of  its  own  motion,  decline  to 
act,  leaving  the  parties  to  get  rid  of  the  finding  in  such 
way  as  they  may  be  advised.  (j(?)  On  the  same  principle, 
the  introduction  of  matter  merely  irrelevant,  is  not  a 
ground  of  exception,  for  its  irrelevancy  must  be  apparent 
from  the  report  itself. 

The  next  step  after  filing  exceptions,  is  that  they  should 
be  heard  and  determined  by  the  Court,  and  in  doing  this 
there  are  three  courses  open  for  adoption. 

1.  They  may  be  disallowed,  or  allowed  absolutely; 
which  has  the  effect  of  at  once  confirming  the  report, 
either  as  it  stands,  or  with  such  changes  as  the  allowance 
of  the  exceptions  may  make. 

2.  If  the  facts  are  imperfectly  stated  in  the  report,  so 
that  no  judgment  can  be  formed  as  to  the  proper  conclu- 
sion ;  or  if  the  existing  evidence  is  unsatisfactory,  but  it 
is  possible  that  other  evidence  exists,  which  in  conse- 
quence of  a  favorable  finding  has  not  been  adduced ;  or 
if  the  nature  of  the  matter  contested,  or  the  frame  of 
the  exceptions,  is  such,  that  their  allowance  shows  a  ne- 

(p)  Adams  v.  Claxton,  6  Ves.  226;  Ottey  v.  Pensam,  1  Hare  326; 
Gregory  v.  West,  2  Beav.  541. 

Whittier,  Id.  577 ;  McKinney  v.  Pierce,  5  Indiana  422 ;  Foster  v.  Goddard, 
1  Blaek  S.  C.  509. 

See,  as  to  practice  on  exceptions  to  Masters'  reports,  in  the  United  States 
Courts,  Kule  in  Eq.  No.  Ixxxiii.  et  seq. :  Penna.  No.  Ixix.,  &c. 

^  Where  the  Master  disregards  the  instructions  and  directions  of  the 
Court,  or  where  he  does  not  furnish  the  facts  necessary  to  enable  the 
Court  to  make  a  decree,  the  report  will  be  set  aside,  though  no  exceptions 
have  been  filed :  Lang  v.  Brown,  21  Ala.  179. 


OF  THE  HEARING  AND  DECREE.       745 

cessity  for  *further  investigation  :  it  may  be  re-  r*qQ7-i 
ferred  back  to  the  Master  to  review  his  report, 
continuing  in  the  meantime  the  reservation  of  further 
directions,  and  either  allowing  the  exceptions,  or  making 
no  order  thereon.  On  a  reference  back  to  review,  the 
Master  may  receive  additional  evidence ;  but  if  it  be  ac- 
companied by  an  allowance  of  the  exception,  he  can  come 
to  no  conclusion  inconsistent  with  the  terms  of  the  excep- 
tion. If  no  order  is  made  on  the  exception,  his  finding 
on  reviewal  is  unfettered.  (§') 

3.  If  the  suit  has  taken  such  a  course,  that  at  the  time 
of  hearing  the  exceptions,  it  is  apparent,  that  whatever 
order  be  made,  the  same  decree  will  follow,  the  Court  may 
decline  to  adjudicate  on  them,  and  may  proceed  to  de- 
cree on  further  directions,  as  if  no  exceptions  had  been 
filed,  (r)^ 

The  plaintiff  may,  at  his  discretion,  set  down  excep- 
tions for  hearing  at  the  same  time  that  he  sets  down  the 
cause  on  further  directions.  But  the  propriety  of  so 
doing  will  depend  on  the  probability  of  the  exceptions 

(g)  Egerton  v.  Jones,  1  Rasa.  &  M.  694 ;  Twyford  p.  Trail,  3  M.  &  C. 
645  ;  Livesey  v.  Livesey,  10  Sim.  331 ;  Ex  parte  Grant,  Id.  573  ;  Ballard  v. 
White,  2  Hare  158  ;  Stocken  v.  Dawson,  3  Phil.  141. 

(r;  Hall  v.  Laver,  1  Hare  571 ;  Robinson  v.  Milner,  Id.  578  ;  Courtenay 
V.  Williams,  3  Id.  554,  639. 

^  The  bill  may  be  dismissed  on  the  hearing  of  exceptions  to  the  Masters 
report,  where  the  court  changes  its  opinion  as  to  the  title  of  the  complain- 
ant to  recover.  The  previous  interlocutory  orders  are  then  open  to  re- 
vision :  Fourniquet  r.  Perkins,  16  How.  U.  S.  82.  In  Lang  v.  Brown,  21 
Ala.  179,  however,  it  was  held  that  where,  from  the  improper  frame  of  the 
decree  of  reference,  the  justice  of  the  case  cannot  be  got  at  without  an  al- 
teration of  the  decree,  the  report  of  the  Master  must  be  direct^ed  to  stand 
over,  and  that  portion  of  the  decree  containing  the  erroneous  direction  be 
reheard  ;  but  that  the  court  cannot  on  exceptions  make  an  order  incon- 
sistent with  the  decree.  The  decree  of  reference  may  also  be  reheard  on 
appeal,  though  no  exceptions  have  been  taken  :  Id. 


746  ADAMS's    DOCTRINE    OF    EQUITY. 

requiring  or  not  requiring  a  reviewal  of  the  report.  For 
if  there  be  a  reference  back  to  review,  the  cause  cannot 
be  heard  on  further  directions,  and  the  expense  of  setting 
it  down  will  have  been  uselessly  incurred. 

When  the  exceptions  have  been  disposed  of  and  the 
report  confirmed,  the  cause  is  heard  on  further  directions 
and  this  is  repeated  from  time  to  time,  as  often  as  any 
further  directions  are  reserved,  (s) 

The  decree  on  further  directions  is  confined  to  carry- 
ing out  the  equities  appearing  on  the  report,  consistently 
with  the  original  decree.  If  circumstances  have  occurred 
since  the  original  decree  which  vary  the  form  of  relief 
required,  but  leave  the  substantial  equity  the  same,  they 
r^ooo-i  may  be  *stated  in  a  petition  to  be  heard  with  the 
cause.  (55)  But  no  order  can  be  made  on  further 
directions  which  will  vary  or  impugn  the  original  decree, 
whether  on  a  point  which  it  had  expressly  decided,  or 
one  which,  being  raised  by  the  pleadings,  and  not  depend- 
ing on  the  questions  referred,  has  been  left  unnoticed,  and 
thus  by  implication  disallowed.  (^)  If  the  original  decree 
is  erroneous,  the  proper  mode  of  correction  is  by  a  re- 
hearing or  appeal. 

A  decree  thus  made,  without  any  reservation  of  further 
directions,  constitutes  a  final  decree;  and  after  it  has 
been  pronounced,  the  cause  is  at  an  end,  and  no  further 
hearing  can  be  had.  It  often  happens,  however,  that  al- 
though the  decree  requires  no  reservation  of  further  di- 
rections, yet  there  is  a  possibility  of  future  interests 
arising,  which  having  a  potential  existence  only,  cannot 
be  then  the  subject  of  judicial  decision,  and  which,  there- 

{s)  2  Dau.  Ch.  P.  c.  26. 

{ss)  Pinkus  v.  Peters,  5  Bear.  253  ;  Tanner  v.  Dancey,  9  Id.  339. 

{t)  Le  Grand  v.  Whitehead,  1  Russ.  309  ;  East  India  Company  v.  Keigh- 
ley,  4  Madd.  38  ;  Camp  v.  Moody,  2  Ves.  470  ;  Creuze  v.  Hunter,  2  Ves. 
Jun.  164. 


OF  THE  HEARING  AND  DECREE.       747 

fore  i)revent  the  cause  from  being  altogether  disposed 
of;  e.g.,  where  a  fund  is  given  to  a  tenant  for  life,  living 
at  the  time  of  the  decree,  with  remainder  to  a  class  of 
individuals  who  cannot  be  ascertained  till  his  death.'  In 
this  case  the  Court  will  not  declare  the  future  interests, 
because  it  cannot  know  what  alterations  may  be  produced 
by  time  ;  but  it  will  order  payment  of  the  income  to  the 
tenant  for  life,  or  make  such  other  decree  as  the  im- 
mediate circumstances  warrant,  with  liberty  for  all  par- 
ties to  apply,  as  their  respective  interests  arise.  The 
eflfect  of  this  liberty  is  to  enable  them  to  apply  sum- 
marily by  petition  or  motion,  without  the  necessity  of 
again  hearing  the  cause.  If  a  similar  difficulty  exist  with 
respect  to  part  only  of  the  property  in  litigation,  and 
such  property  be  in  the  hands  of  the  Court,  it  will  be  met 
J[)y  carrying  it  over  to  a  separate  account,  distinguished 
by  an  explanatory  title,  with  a  like  liberty  to  apply.  In 
this  way  the  share  of  an  infant,  or  of  a  married  woman, 
will  be  carried  over  to  a  separate  account,  entitled  in  the 
*one  case  the  infant's  account,  and  in  the  other,  r*qoQ-i 
the  account  of  the  husband  and  wife,  with  liberty 
for  the  infant  to  apply  on  attaining  twenty-one,  and  for  a 
husband  and  wife  to  apply  generally,  so  that  the  consent 
of  the  wife  to  relinquish  her  equity  for  a  settlement  may 
be  ascertained,  (z^) 

On  the  same  principle,  if  a  sum  of  money  appears  at 
the  hearing  to  belong  primd  facie  to  one  person,  subject 
to  claims  by  others  which  cannot  then  be  discussed,  it 
will  be  carried  to  the  account  of  the  primd  facie  owner, 
with  a  direction  that  it  shall  not  be  paid  to  him  without 
notice  to  the  adverse  claimants,  and  such  claimants  may 
then  present  a  petition  to  have  the  fund  out  of  Court, 

(u)  2  Dan.  1251. 


748  ADAMS'S    DOCTRINE    OF    EQUITY. 

and  may  serve  it  on  the  party  in  whose  name  it 
stands,  (v) 

The  hearing  of  the  cause  on  further  directions  is  gene- 
rally the  occasion  for  deciding  on  the  "costs  of  the  cause." 
The  precise  nature  of  the  costs  included  under  this  ex- 
pression, as  distinguished  from  incidental  costs,  which 
are  disposed  of  as  they  arise,  need  not  be  here  discussed; 
but  it  will  be  important  to  consider  briefly  the  rules 
which  determine  by  whom  the  "costs  of  the  cause"  shall 
be  borne. 

In  considering  this  subject  it  must  be  borne  in  mind, 
that  the  jurisdiction  in  equity  is  not  like  that  at  common 
law,  purely  litigious,  but  in  many  instances  protective 
and  administrative  ;  and  it  is  obvious  that  under  each  of 
these  heads  the  rule  as  to  costs  may  properly  be  very 
different. 

In  suits  under  the  protective  and  administrative  juris- 
diction of  the  Court,  the  general  principle  is,  that  the 
party  requiring  aid  shall  be  liable  for  the  costs  .^     Such, 

[v]  2  Dan.  Ch.  P.  1342. 

^  The  subject  of  costs  is  now  very  much  governed  by  statute,  and  by  the 
rules  of  Court,  in  the  different  states.  Subject  to  such  provision,  the 
general  principles  stated  in  the  text  appear  to  govern. 

Thus  it  is  established  that  the  costs  of  a  bill  of  discovery  are  to  be  paid 
by  the  complainant,  unless  the  defendant,  on  application  made  before  bill 
filed,  has  unreasonably  refused  to  make  disclosure  :  Burnett  v.  Saunders,  4 
Johns.  Ch.  503  ;  King  v.  Clarke,  3  Paige  76  ;  Boughton  v.  Philips,  6  Id. 
334;  Harris  ».  Williams,  10  Id.  108;  Price  v.  Tyson,  3  Bland  392; 
McElwee  v.  Sutton,  1  Hill  Eq.  32 ;  Dennis  v.  Kiley,  1  Foster  (N.  H.^  50. 
If,  however,  the  bill  also  pray  general  or  special  relief,  the  costs  are  as  in 
other  cases  :  McDougall  v.  Miln,  2  Paige  325  ;  Ross  v.  Adams,  5  Dana  509. 
And  the  costs  on  successful  exceptions  to  an  answer,  are  of  course  to  be 
paid  by  the  defendant :  Price  v.  Tyson,  3  Bland  392. 

So,  a  mortgagor  is  obliged  to  pay  the  costs,  on  bill  to  redeem,  unless  the 
mortgagee  has  set  up  an  unconscientious  defence,  or  has  claimed  the  pro- 
perty as  owner  :  Slee  v.  Manhattan  Co.,  1  Paige  48  ;  Turner  v.  Turner,  3 


OF  THE  HEARING  AND  DECREE.       749 

for  instance,  are  suits  for  discovery  and  for  perpetuating 
testimony,  in  which  the  costs  are  paid  by  the  plaintiff; 
suits  for  partition,  in  which,  by  analogy  to  a  partition  at 
law,  the  costs  of  the  commission  and  of  making  out  the 
title  are  paid  in  proportion  to  the  respective  interests, 
and  *no  other  costs  either  precedent  or  subse-  r^qon-i 
quent  are  allowed ;  and  suits  for  assignment  of 
dower,  in  which  by  the  same  analogy,  no  costs  are 
given ;  (vv)  suits  for  redemption,  or  in  the  nature  of  re- 
demption, as  for  setting  aside  a  purchase  on  repayment  of 
the  money  advanced,  in  which  the  party  redeemed  is,  in 
the  absence  of  gross  misconduct,  entitled  to  his  cosis;{w) 
suits  against  an  heir  to  establish  a  will,  or  against  a  vicar 
or  rector  to  establish  a  modus,  in  which  the  heir,  unless  he 

(r»)  2  Dan.  1103  ;  Bamford  v.  Bamford,  5  Hare  203. 
[w)  2  Dan.  Ch.  P.  1260-1267. 

Munf.  66 ;  Saunders  ».  Frost,  5  Pick.  259 ;  May  v.  Eastin,  2  Porter  414 ; 
Bridgen  v.  Carhartt,  Hopkins  234 ;  Phillips  v.  Hulzizer,  20  N.  J.  Eq.  308. 

On  the  other  hand,  the  complainant  in  an  interpleader  suit,  where  his  bill 
is  necessarily  and  properly  filed  as  against  both  defendants,  is  entitled  to 
his  costs  out  of  the  fund :  Richards  v.  Salter,  6  Johns.  Ch.  445  ;  Badeau  v. 
Rogers,  2  Paige  209  ;  Atkinson  v.  Manks,  1  Cowen  691  ;  Canfield  v.  Ster- 
ling, Hopkins  224  ;  Spring  v.  So.  Car.  Ins.  Co.,  8  Wheat.  268  ;  or  from  the 
unsuccessful  defendant :  Beers  v.  Spooner,  9  Leigh  155.  So  a  mere  stake- 
holder who  submits  to  the  judgment  of  the  Court,'  is  entitled  to  his  costs, 
or  at  least  is  not  subjected  to  them :  Dowdall  v.  Lenox,  2  Edw.  Ch.  267  ; 
Stafford  v.  Mott,  3  Paige  100  ;  Buck  v.  Swazey,  35  Maine  42.  Though  he 
is  not  entitled  to  counsel  fees :  Ohio  Life  Ins.  Co.  v.  Winn,  4  Md.  Ch. 
253.  ^ 

In  partition,  the  costs  generally  come  out  of  the  estate,  or  are  divided 
between  all  the  parties :  Coles  v.  Coles,  2  Beas.  365.  But  where  the  com- 
plainant causes  additional  litigation  by  setting  up  an  unfounded  claim,  he 
will  be  charged  with  the  additional  costs  occasioned  thereby  :  Crandall  v. 
Hoysradt,  1  Sandf.  Ch.  40. 

Where  heirs  are  necessary  parties,  and  make  no  resistance  to  the  decree, 
they  will  be  entitled  to  their  costs :  Dyer  v.  Potter,  2  Johns.  Ch.  152. 

See,  on  the  subject  of  costs,  Daniell's  Ch.  Prac.  ch.  xxx. 


750  ADAMS's    DOCTRINE    OF    EQUITY. 

vexatiously  litigate  the  will,  and  the  vicar  or  rector,  unless 
he  dispute  the  modus,  are  entitled  to  costs  ;(:r)  suits  for 
the  performance  of  trusts,  in  which  the  trustees  are  enti- 
tled to  their  reasonable  costs  out  of  the  fund,  except  in  so 
far  as  their  own  inisconduct  has  occasioned  the  suit;(_^) 
and  suits  for  the  administration  of  assets,  in  which  the 
costs  are  treated  as  expenses  of  administration,  and  are 
payable,  first,  to  the  personal  representative,  and  next,  if 
the  bill  be  a  creditor's  bill,  to  the  plaintijQT,  as  the  primary 
charge  on  the  personal  estate.  (^)^  The  same  principle  is 
applied  where  a  legal  mortgagee,  instead  of  foreclosing, 
resorts  for  his  own  benefit  to  a  decree  for  sale ;  in  which 
case  the  costs  of  suit  become  costs  of  administering  the 
estate,  and  are  discharged  in  the  first  instance,  {a)  If  the 
costs  have  been  incurred  in  administering  several  funds, 
of  which  the  ultimate  destinations  are  different,  an  appor- 
tionment may  be  made.  (J)  A  claim  has  also  been  made 
on  behalf  of  the  Attorney-General  to  have  his  costs  from 
the  plaintiff  in  suits  where  a  claim  by  the  Crown  is  in- 
volved, on  the  ground  that  they  are  incurred  in  perform- 
ance of  a  public  duty ;  and  a  similar  claim  has  been  set 
up  on  behalf  of  provisional  assignees  in  suits  for  foreclo- 
P^qqi-i  sure  of  a  bankrupt's  or  insolvent's  estate.  *But 
both  these  claims  have  been  disallowed;  for  what- 
ever be  the  hardship  on  the  parties  making  them,  it  is 
not  to  be  remedied  at  the  plaintiff's  expense,  (c) 

(a;)  2  Dan.  Ch.  P.  1257-1260.  [y)  Id.  1286. 

(z)  Shuttlewerth  v.  Ilowarth,  Cr.  &  P.  228  ;  Larkias  ».  Paxton,  2  M.  & 
K.  320 ;  Tipping  v.  Power,  1  Hare  409 ;  Tanner  v.  Dancey,  9  Beav.  339. 
(a)  Tipping  v.  Power,  1  Hare  409  ;  Hepworth  v.  Ileslop,  3  Id.  485. 
(6)  Christian  v.  Foster,  2  Ph.  161. 
(c)  Perkins  v.  Bradley,  1  Hare  233  ;  Appleby  ».  Duke,  1  Phill.  272. 

'  See,  on  this  subject,  Decker  v.  Miller,  2  Paige  149 ;  Hunn  v.  Norton, 
Hopkins  344. 


OF  THE  HEARING  AND  DECREE.       751 

The  amount  of  costs  payable  in  a  suit,  whether  given 
out  of  a  fund  or  payable  by  a  party,  is  ascertained  by 
taxation,  which,  if  conducted  by  the  strict  rule  of  the 
Court,  is  termed  a  taxation  as  between  "  party  and  party." 
But  there  is  in  some  cases  a  more  liberal  allowance  called 
"  costs  as  between  solicitor  and  client."  In  suits  of  a 
litigious  class,  the  taxation  is  always  "  as  between  party 
and  party,"  but  in  those  of  a  protective  or  administrative 
kind,  its  adoption  though  general  is  subject  to  exceptions. 
The  suits  in  which  an  exception  is  made  are  those  for 
performance  of  trusts  and  administration  of  assets,  in 
which  the  trustee  or  personal  representative  has  always 
his  costs  as  between  solicitor  and  client ;  and  if  payments 
have  been  made  by  him  not  coming  strictly  under  the 
name  of  costs,  he  may  obtain  them  also  by  a  direction 
for  "charges  and  expenses,  not  strictly  costs  in  the 
cause." (</)^  In  suits  to  establish  or  administer  a  charity, 
if  the  fund  be  of  adequate  amount,  and  the  parties  have 
conducted  themselves  with  propriety,  the  taxation  "as 
between  solicitor  and  client,"  is  extended  to  the  costs  of 
all ;  and  a  privilege  of  a  like  character  is  conferred  on 
the  plaintiff  in  a  creditor's  suit,  if  the  estate  to  be  admin- 
istered prove  insolvent ;  for  in  this  case  the  creditors, 
whom  he  represents,  are  entitled  to  the  whole  fund.  But 
if  there  be  any  surplus,  so  that  other  persons  become 
interested,  he  can  claim  only  his  costs,  as  between  party 
and  party,  (c) 

In  suits  under  the  litigious  jurisdiction  of  the  Court, 
the  general  principle  is  that  the  costs  shall  follow  the 
result. 

[d)  2  Smith,  Ch.  P.  461.  (e)  Stanton  v.  Hatfield,  1  Keen  358. 

*  See,  on  this  subject,  Hill  on  Trustees  856,  et  seq.,  and  notes,  4th  Am. 
ed. ;  McKim  v.  Handy,  4  Md.  Ch.  228. 


752  ADAMs's    DOCTRINE    OF    EQUITY. 

In  the  particular  case  of  a  bill  against  a  vendor  for 

specific  performance,  and  a  subsequent  dismissal  through 

his  want  of  title,  a  doubt  has   existed  whether,  notwith- 

^.^ ,    standinof  *such  dismissal,  he  may  not  be  charged 

r  3921       .  ^  J  fe 

L        J    with  costa.     But  the  rule  seems  to  be  established 

that  the  bill  in  such  case  will  be  dismissed  without  costs  ; 

and  in  all  o4her  cases  the  rule  is  so  far  strictly  adhered  to 

that  a  successful  party  never  pays  costs.  (/)     If  a  decree 

for  specific  performance  is  obtained  by  a  vendor,  who  has 

not  shown  a  good  title  before  the  suit  commenced  but  who 

has  made  out  a  title  afterwards,  he  will  be  liable  for  all 

the  costs  incurred  previously  to  the  making  out  of  such 

title. 

With  respect,  however,  to  the  right  of  the  successful 
party  to  receive  costs,  the  practice  is  less  uniform,  and  de- 
crees are  frequently  made,  and  bills  dismissed  without 
costs,  on  the  ground  that  the  failing  party  has  been  misled 
by  his  adversary's  conduct,  or  that  the  question  in  dispute 
was  one  of  very  doubtful  character,  or  even  in  some  in- 
stances merely  in  consideration  of  the  hardship  of  his 
case.(  g) 

The  propriety  of  making  exceptions  to  the  rule,  on  the 
ground  of  doubt  or  hardship,  appears  to  be  very  question- 
able, because,  however  doubtful  the  title  may  be,  or  how- 
ever reasonable  the  litigation,  it  is  but  fair  that  the  party 
ultimately  found  entitled  should  be  reimbursed  the  ex- 

(/)  3  Sug.  V.  &  P.  137  ;  Westcott  v.  Culliford,  3  Hare  275  ;  Maiden  v. 
Fyson,  9  Beav.  347.     [See  Brooks  v.  Byam,  2  Story  553.] 

((7)  Feriton  v.  Brown,  14  Ves.  144  ;  Robinson  v.  Kosher,  1  N.  C.  C.  7  ; 
Cogan  V.  Stephens,  Lewin  on  Trustees  730  ;  2  Dan.  Ch.  P.  1279. 

'  See  Bradley  v.  Chase,  22  Maine  511 ;  Pinnock  v.  Clough,  16  Verm. 
500;  Clark  v.  Keed,  11  Pick.  446  ;  Hammersley  v.  Barker,  2  Paige  372; 
Pattison  v.  Hull,  9  Cowen  747  ;  Jones  v.  Mason,  5  Rand.  577  ;  Blakeney  v. 
Ferguson,  14  Ark.  460 ;  Tatham  v.  Lewis,  65  Penn.  St.  65.    ■ 


OF  THE  HEARING  AND  DECREE.       753 

pense  of  defending  his  right.  (7^)  There  is,  however,  no 
doubt  that  a  limited  discretion  is  exercised  by  the  Court; 
but,  subject  to  such  discretion,  the  general  rule  is  that  the 
costs  will  follow^  the  event,  and  more  especially  so  if  the 
plaintiff's  claim  be  either  made  or  resisted  on  the  ground 
of  fraud.  (/)^  If  several  claims  or  defences  are  set  up,  of 
which  some  only  succeed,  the  costs  of  suits  may  be  ap- 
portioned accordingly,  or,  instead  of  such  apportionment, 
each  party  may  be  left  to  the  payment  of  his  own.(^)^ 

*If  a  specific  tender  of  the  amount  due  be  made   ^,  ^   ^^ 

.  •       r*3931 

before  the  commencement  of  the  suit,  or  after  its   ^         -• 

commencement  of  the  amount  and  costs  already  incurred, 

a  proof  of  such  tender,  and  of  its  refusal  by  the  plaintiff, 

will  throw  on  him  the  burden  of  subsequent  costs ;  and 

(7t)  Millington  v.  Fox,  3  M.  k  C.  352. 

[i)  Scott  r.  Dunbar,  1  Moll.  442  ;  Wright  v.  Howard,  1  S.  &  S.  190. 
[k)  3  Dan.  Ch.  P.  40;  2  Smith  463;  Strickland  v.  Strickland,  3  Beav. 
242. 

^  As  a  general  rule,  the  prevailing  party  is  entitled  to  costs.  This,  how- 
ever, is  a  matter  to  a  certain  extent  within  the  discretion  of  the  court, 
though  that  discretion  is  limited  by  fixed  rules :  Nicoll  v.  Trustees,  1  Johns. 
Ch.  100  ;  Eastburn  v.  Kirk,  2  Id.  317  ;  Matter  of  Ilemiup,  3  Paige  305; 
Woodson  V.  Palmer,  1  Bail.  Eq.  95  ;  Lee  v.  Pindle,  12  Gill  &  J.  288  ;  Clark 
V.  Reed,  11  Pick.  446  ;  Tomlinson  v.  Ward,  2  Conn.  396  ;  Stone  v.  Locke, 
48  Maine  425  ;  Brooks  v.  Byam,  2  Story  553  ;  Gray  v.  Gray,  15  Ala.  779. 
Partial  relief  usually  entitles  the  complainant  to  costs :  Rough  v.  Marshall, 
4  Bibb  507  ;  Hightower  v.  Smith,  5  J.  J.  Marsh.  542.  Where  there  has 
been  an  oppressive  accumulation  of  costs,  occasioned  by  the  errors  and  im- 
perfections of  the  complainant's  proceedings,  the  court  will  relieve  the  de- 
fendants from  their  payment  :  Blakeney  v.  Ferguson,  14  Ark.  460. 

*  Though  there  is  no  rule  that  in  every  instance  in  which  a  defendant 
takes  several  grounds  of  defence,  one  feasible  and  successful,  the  r^st 
doubtful  or  invalid,  that  circumstance  ought  to  avail  the  plaintiff  on  the 
subject  of  costs  ;  yet,  where,  upon  the  evidence,  the  plaintiff's  case  fails 
absolutely  and  wholly  as  a  case  for  equitable  relief,  but  the  defendant  has 
in  the  suit  endeavored  to  support  claims  without  any  just  foundation,  and 
vexatiously  disputed  the  legal  title  of  the  plaintiff,  the  bill  ought  to  be  dis- 
missed without  costs :  Clowes  v.  Beck,  2  De  G.,  M.  &  G.  731. 
48 


754  ADAMS's    DOCTRINE    OF    EQUITY. 

even  where  no  tender  can  in  strictness  be  made,  yet  if  a 
defendant  has  offered  terms  which  would  have  rendered 
the  suit  unnecessary,  the  plaintiff,  though  in  strictness 
entitled  to  a  decree,  may  be  refused  his  costs.  (/) 

The  manner  of  compelling  obedience  to  a  decree  still 
remains  for  consideration,  (m)  The  power  of  the  Court 
for  this  purpose,  like  that  for  compelling  appearance  or 
answer,  was  originally  confined  to  process  of  contempt. 
If  the  order  disobeyed  was  for  appearance  and  answer, 
disobedience  was  a  contempt  of  the  sulpoena,  if  for  per- 
formance of  a  decree,  it  was  a  contempt  of  another  writ 
also  issued  under  the  Great  Seal,  termed  the  writ  of  exe- 
cution. In  either  case,  the  process  of  contempt  was  by 
the  five  successive  steps  of  attachment,  attachment  with 
proclamations,  writ  of  rebellion,  serjeant-at-arms,  and 
sequestration ;  or  in  the  case  of  a  privileged  person,  by 
sequestrations  nisi  and  absolute,  and  in  that  of  a  corpora- 
tion by  distringas  and  sequestration.  The  only  differences 
were,  that  an  attachment  for  non-performance  of  a  decree 
was  not,  like  an  attachment  on  mesne  process,  a  bailable 
writ ;  [n)  that  in  the  particular  instance  of  a  decree  for  de- 
livering up  an  estate,  the  Court  might  effectuate  its  own 
order  by  issuing  a  writ  of  assistance  to  the  sheriff,  com- 
manding him  to  put  the  plaintiff  in  possession ;  and  that 
on  a  decree  for  payment  of  money,  the  receipts  under  a 
sequestration,  though  intended  as  a  means  of  punishment, 
might  indirectly  operate  as  a  performance. 

We  have  already  seen  that  by  the  present  orders  of  the 
Court  the  two  steps  of  attachment  with  proclamations  and 
writ  of  rebellion  are  abolished,  and  the  process  of  con- 

(Z)  Millington  v.  Fox,  3  M.  &  C.  35:2;  Kelly  v.  Hooper,  1  N.  C.  C.  197. 
[See  Rucker  v.  Howard,  2  Bibb  166.] 
(w)  2  Dan.  1020.  (»)  Id.  1326. 


OF    THE    HEARING    AND    DECREE.  755 

tempt  ^reduced  to  attachment,  serjeant-at-arms,  r^qq^^-i 
and  sequestration,  (o) 

The  same  orders  which  effected  this  reduction  have 
also  abolished  the  writ  of  execution,  and  have  substituted 
service  of  a  copy  of  the  decree.  With  this  view,  it  is 
directed  that  every  order  or  decree  requiring  an  act  to  be 
done,  shall  state  the  time,  or  time  after  service,  within 
which  it  is  to  be  done ;  and  that  if  a  decree  directing  an 
act  within  a  limited  time  be  disobeyed  after  due  service, 
the  party  prosecuting  it  shall  be  entitled  to  an  attach- 
ment, and  on  default  after  arrest  to  sequestration,  or  if 
the  sheriff  return  "  non  est  inventus"  to  an  order  at  his 
option,  for  an  immediate  sequestration  or  a  serjeant-at- 
arms,  and  if  the  decree  is  for  delivering  up  possession, 
shall  also  be  entitled  to  a  writ  of  assistance.  And  it  is 
further  declared  that  the  same  process  shall  be  available, 
although  the  person  in  favor  of,  or  against  whom  the  order 
is  made,  be  not  a  party  to  the  record.  (j») 

If  the  decree  or  order  direct  the  payment  of  costs 
alone,  it  is  enforced  by  a  subpoena  for  costs  and  a  non-bail- 
able attachment.  But  if  the  payment  of  other  moneys  be 
also  directed,  the  ordinary  process  will  extend  to  the 
whole,  and  a  subpoena  is  unnecessary.  If  payment  be 
directed  out  of  a  fund  or  an  estate,  a  subpoena  does  not 
lie,  but  a  sufficient  proportion  will  be  ordered  to  be 
sold.(^)^ 

The  inefficacy  of  the  process  of  contempt  for  compel- 

(o)  Supra,  Appearance  ;  Answer.  {p)  Aug.  1841,  x.,  xiii.,  xv. 

(3)  2  Dan.  Ch.  P.  1328. 

'  The  coste  of  a  suit  instituted  to  obtain  the  opinion  of  the  Court  upon 
a  specific  devise  of  real  estate,  in  which  infants  were  interested,  were  di- 
rected to  be  raised  by  sale  or  mortgage  of  a  sufl&cient  part  of  the  estate : 
Mandeno  v.  Mandeno,  23  L.  J.  Ch.  511, 


756  ADAMS's    DOCTRINE    OF    EQUITY. 

ling  a  perverse  defendant  to  obey  has  been  already  com- 
mented on,  as  well  as  the  remedies  which  have  been 
provided  in  respect  to  appearance  and  answer.  In  respect 
to  contempts  by  non-performance  of  a  decree,  remedies 
have  been  also  provided ;  first,  by  1  Wm.  4,  c.  36,  in 
regard  to  the  execution  of  instruments,  and  the  delivery 
up  of  documents ;  and,  secondly,  by  1  &  2  Vict.  c.  110, 
in  regard  to  the  payment  of  sums  of  money. 
p:5.oQfr-|  *By  the  fifteenth  rule  of  1  Wm.  4,  c.  36,  it  is 
directed  that  when  the  execution  of  any  instru- 
ment, or  the  making  of  any  transfer  or  surrender  is  de- 
creed, the  Court  shall  have  authority,  on  default  by  the 
defendant  after  committal,  to  direct  a  Master  to  execute, 
surrender,  or  transfer  in  his  stead ;  (r)  and  by  the  six- 
teenth rule  of  the  same  act,  it  is  directed  that  where  a 
party  is  in  contempt  for  non-production  of  documents,  the 
sequestrators  may  seize  such  documents  and  dispose  of 
them  as  the  Court  shall  direct. 

By  the  1  &  2  Vict.  c.  110,  s.  18,  it  is  directed  that  all 
decrees  and  orders  of  Courts  of  equity,  by  which  any  sum 
of  money  or  costs  shall  be  payable  to  any  person,  shall 
have  the  effect  of  judgments  at  law.  And  by  sect  20  of 
the  same  act,  and  the  General  Orders  of  May,  1839,  a 
party  to  whom  payment  of  any  sum  of  money  or  costs 
has  been  ordered  may  enforce  it,  not  only  indirectly  by 
sequestration,  but  by  direct  WTits  of  fieri  facias  or  elegit ; 
and  if  it  appears  on  a  return  of  a  fieri  facias  that  the 
sheriff  has  seized,  but  not  sold  the  goods,  then  by  a 
further  writ  of  venditioni  exponas.  {sY 

(r)  2  Dan.  1050.  [s)  Ibid.  1020. 

^  It  seems  now  settled,  after  some  doubts,  that  an  action  may  be  main- 
tained upon  a  decree  in  equity  for  the  payment  of  a  specific  sura :  Pen- 
nington V.  Gibson,  16  How.  U.  S.  65.     See  Evans  v.  Tatem,  9  S.  &  R.  252. 


OF    THE     HEARING    AND    DECREE.  757 

Where  none  of  these  remedies  can  be  adopted,  as  when 
the  act  ordered  requires  the  personal  agency  of  the  de- 
fendant, the  Court  is  remitted  to  the  process  of  contempt, 
and  can  only  enforce  its  decree  by  imprisonment  and 
sequestration.^ 

By  the  eighty-third  of  the  new  Equity  Rules  In  Pennsylvania,  it  is  pro- 
vided that  final  process  for  the  execution  of  any  decree  may,  if  the  decree 
be  solely  for  the  payment  of  money,  be  by  a  writ  of  execution  in  the 
form  used  in  the  same  Court  in  suits  at  common  law  in  actions  of  debt  or 
assumpsit. 

^  By  the  8th  Rule  in  Equity  of  the  United  States  Courts,  it  is  provided 
that  final  process  to  execute  a  decree  may,  if  the  decree  be  solely  for  the 
payment  of  money,  be  by  a  writ  of  execution  in  the  form  used  in  the  Cir- 
cuit Court  in  suits  at  common  law  in  actions  of  assumpsit.  If  the  decree 
be  for  the  performance  of  any  specific  act,  as  for  example,  for  the  "execu- 
tion of  a  conveyance  of  land,  or  the  delivering  up  of  deeds,  or  other  docu- 
ments, the  decree  shall,  in  all  cases,  prescribe  the  time  within  which  the  act 
shall  be  done,  of  which  the  defendant  shall  be  bound  without  further  ser- 
vice to  take  notice ;  and  upon  affidavit  filed  in  the  Clerk's  office,  that  the 
same  has  not  been  complied  with  within  the  prescribed  time,  the  clerk 
shall  issue  a  writ  of  attachment  against  the  delinquent  party,  from  which, 
if  attached  thereon,  he  shall  not  be  discharged,  unless  upon  full  compli- 
ance with  the  decree,  and  the  payment  of  all  costs,  or  upon  a  special  order 
of  the  Court,  or  of  a  judge  thereof,  upon  motion  and  affidavit  enlarging 
the  time  for  the  performance  thereof.  If  the  delinquent  party  cannot  be 
found,  a  writ  of  sequestration  \a  to  issue  against  his  estate.  In  Pennsyl- 
vania, see  Rule  Ixxxiii. 


758  ADAMS's     DOCTRINE    OF    EQUITY. 


[*396]  *CHAPTER    YIII. 

OF   THE   REHEARING   AND    APPEAL. 

The  next  subject  for  consideration,  after  the  regular 
conclusion  of  a  suit  by  decree  is  the  jurisdiction  for  alte- 
ration or  reversal.  («)  And,  it  should  be  observed,  that 
the  authority  for  this  purpose  is  not  confined  as  at  law  to 
the  final  judgment,  but  extends  to  interlocutory  proceed- 
ings in  the  cause. 

The  first  step  after  judgment  is,  as  we  have  seen,  the 
giving  out  and  settlement  of  the  minutes.  If  the  minutes 
do  not  correspond  with  the  judgment,  the  requisite  altera- 
tions are  efi'ected  in  the  manner  already  pointed  out.  But 
in  order  that  the  judgment  itself  may  be  impeached,  the 
decree  must  no  longer  remain  in  minutes,  but  must  have 
been  regularly  drawn  up,  passed  and  entered,  so  as  to 
constitute  a  record,  though  not  a  conclusive  one,  of  the 
Court  of  Chancery. 

After  an  entry  and  before  enrolment,  the  decree  is  in 
some  sense  still  in  fieri,  and  may  be  altered  by  a  rehear- 
ing before  the  same  jurisdiction,  viz.,  either  before  the 
judge  who  originally  made  it,  or  before  the  Lord  Chan- 
cellor as  the  head  of  the  Court.  If  it  be  reheard  before 
the  same  judge,  it  may  be  again  reheard  by  the  Chan- 
cellor, {b)  But  after  it  has  been  reheard  by  the  Chancel- 
la)  2  Dan.  1331. 
(6)  Brown  v.  Higgs,  8  Ves.  567. 


OF    THE    REHEARING    AND    APPEAL.  759 

lor,  it  cannot,  without  special  cause  shown,  be  again  re- 
heard, (c) 

If  the  error  complained  of  he  a  mere  clerical  slip,  it 
may  *be  rectified  before  enrolment  on  a  common  r^oqj-\ 
petition,  without  the  expense  of  a  rehearing,  (cc) 
And  if  the  order*  itself  has  been  made  on  motion,  or  on 
ex  parte  petition  irregularly  presented,  it  is  not  the  sub- 
ject of  rehearing,  but  may  be  discharged  on  an  independ- 
ent motion.  (^)^  In  all  other  cases,  a  revisal  or  variation 
before  enrolment  must  be  effected  by  a  petition  or  re- 
hearing.^ So  long  as  the  decree  is  capable  of  rehearing 
it  is  not  capable  of  appeal;  but  as  soon  as  enrolment 
has  taken  place  it  becomes  a  conclusive  decree  in  Chan- 
cery, and  can  only  be  altered  by  an  appellate  jurisdic- 

(c)  Moss  V.  Baldock,  1  Phill.  118. 

{cc)  45th  Order  of  1828  ;  2  Smith  Ch.  P.  14 ;  Whitehead  v.  North,  Cr.  & 
P.  78. 

{d)  West  V.  Smith,  3  Beav.  306. 

*  Gardiner,  J.,  Gracie  v.  Frceland,  1  Comstock  236. 

*  A  rehearinff  is  not  a  matter  of  right,  but  rests  in  the  sound  discretion 
of  the  court:  Daniel  v.  Mitchell,  1  Story  198  :  Hodges  r.  N.  E.  Screw  Co., 
5  Rhode  Island  9  ;  Zinc  Co.  r.  The  Franklinite  Co.,  1  McCart.  309 ;  Bru- 
magim  v.  Chew,  4  Green  337.  It  is  only  allowed  where  some  plain  error, 
omission  or  mistake,  has  been  made,  or  where  something  material  to  the 
decree  is  brought  to  the  notice  of  the  court  which  had  been  before  over- 
looked :  Jenkins  r.  Eldredge,  3  Story  299.  It  is  not  suflBcient  to  show  that 
injustice  has  been  done  ;  but  it  must  appear  that  it  occurred  under  circum- 
stances authorizing  the  court  to  interfere  ;  that  the  petitioner  has  not  been 
guilty  of  laches ;  and  that  the  matter  on  which  he  relies  could  not  have 
been  obtained  by  reasonable  diligence  at  the  former  hearing  :  Walsh  v. 
Smyth,  3  Bland  9 ;  see  also.  Burn  v.  Poaug,  3  Dessaus.  596 ;  Wilcox  v. 
Wilkinson,  Cam.  &  Nor.  528  (538)  ;  s.  c.  1  Murph.  11  ;  Townshend  v. 
Smith,  1  Beas.  350.  A  rehearing  may  be  granted  even  after  the  lapse  of 
thirty  years,  for  an  obvious  error  in  the  decree,  where  a  fund,  which  was 
the  subject  or  the  original  suit,  has  remained  undistributed :  Brandon  r. 
Brandon,  25  L.  7.  Ch.  896.     See,  further,  post,  note  to  page  399. 


760  ADAMS's    DOCTRINE     OF     EQUITY. 

tion.(e)^  If,  therefore,  either  party  desire  a  rehearing, 
he  should  enter  a  caveat  against  enrohnent,  which  will 
stay  it  for  twenty-eight  days,  and  give  him  an  opportunity 
to  apply  for  the  purpose.  But  if  he  neglect  this,  and 
the  enrolment  takes  place  before  an  order  to  rehear  has 
been  served,  it  cannot  afterwards  be  vacated  except  on 
special  grounds  of  fraud,  surprise,  or  irregularity.  (/) 

The  appellate  jurisdiction  in  equity  is  twofold;  viz.,  1. 
In  the  King,  whose  conscience  is  ill-administered,  and 
who  may  issue  a  special  commission  pro  re  natd  to  recon- 
sider his  Chancellor's  decree  ;(^)  and  2.  In  the  House  of 
Lords,  on  petition  to  them  as  the  supreme  judicature  of 
the  realm. 

The  latter  of  these  -courses,  a  petition  to  the  Lords,  has 
now  altogether  superseded  the  former ;  but  in  the  latter 
part  of  the  seventeenth  century  a  vehement  dispute  re- 
specting its  validity  arose  between  the  Houses  of  Lords 
and  Commons,  and  it  was  contended  that  the  appellate 
jurisdiction  in  equity,  like  that  on  writs  of  error  at  common 
law,  could  only  be  exercised  under  a  reference  from  the 
P^j-qgo-i  Crown,  *and  not  on  a  mere  petition  to  the  Lords. 
The  dispute  ou  this  point  had  been  preceded  by 
a  similar  one,  arising  out  of  a  cause  of  Skinner  v.  The 
East  India  Company,  as  to  the  Lords'  claim  to  an  original 
jurisdiction,  and  the  result  of  that  contest,  though  in  terms 

(e)  McDermott  v.  Kealy,  1  Phill.  267  ;  Sheehy  v.  Muskerry,  7  CI.  &  F. 
1 ;  Andrews  v.  Walton,  8  Id.  457. 

(/)  Hughes  V.  Garner,  2  Y.  &  0.  335 ;  Sheehy  v.  Muskerrry,  7  CI.  &  F. 
22 ;  Dearman  v.  Wych,  4  M.  &  C.  550. 

{g)  Hale's  Jurisdiction  of  the  House  of  Lords,  Pref.  xxxix.,  and  p.  186. 

1  Ducker  v.  Belt,  3  Md.  Ch.  13  ;  Hitch  v.  Fenby,  4  Id.  190  ;  Simpson  v. 
Downs,  5  Rich.  Eq.  421 ;  Robinson  v.  Lewis,  2  Jones  Eq.  25.  See  also 
Hurlburd  v.  Freelove,  3  Wise.  537. 


OF     THE    REHEARING    AND    APPEAL.  761 

a  compromise,  has  been  practically  an  abandonment  of  the 
claim.  (^^) 

The  contest  on  the  appellate  jurisdiction  arose  in  the 
session  of  1675,  on  three  petitions  of  appeal  in  the  causes 
of  Shirley  v.  Fagg,  Stouten  v.  Onslow,  and  Crispe  v.  Dal- 
mahoy.  In  each  of  these  suits  the  respondent  in  the 
appeal  was  a  member  of  the  House  of  Commons ;  and  their 
alleged  privilege  of  not  being  summoned  to  attend  the 
Lords  was  in  the  onset  the  principal  matter  in  dispute. 
The  contest  speedily  assumed  a  different  aspect,  and  was 
put  by  both  Houses  on  the  express  issue,  whether  the 
House  of  Lords  was,  as  asserted  by  its  members,  the  As- 
sembly where  the  King  is  highest  in  the  royal  estate,  and 
where  the  last  resort  of  judging  on  writs  of  error  and 
appeals  in  equity  is  fixed.  It  was  for  a  time  quieted  by 
a  prorogation;  but  at  the  re-assembling  of  Parliament  it 
was  resumed,  and  a  resolution  was  passed  by  the  Com- 
mons, "  that  whosoever  shall  solicit,  plead,  or  prosecute 
any  appeal  against  any  commoner  from  any  Court  of 
equity  before  the  House  of  Lords,  shall  be  deemed  and 
taken  a  betrayer  of  the  rights  and  liberties  of  the  people 
of  England."  The  resolution,  however,  thus  passed,  was 
their  last  effort  of  resistance.  And  at  the  meeting  of  Par- 
liament, after  the  next  prorogation  in  February,  1677,  the 
Commons  appear  to  have  tactily  abandoned  the  contest; 
and  although  their  previous  resolution  was  not  in  terms 
rescinded,  the  jurisdiction  has  been  since  exercised  with- 
out dispute.  (A)  The  jurisdiction  is  confined  to  appeals 
in  equity,  and  does  not  extend  either  to  the  administra- 

{gg)  Hargrave's  Pref.  to  Hale's  Jurisdiction,  p.  xcix.-cxxiv. 
(h)  Hale's  Jurisdiction  of  Lords ;  Hargrave's  Preface,  cxxxv.-clxvii., 
Macqueen's  Practice  70-92. 


762  ADAMS's    DOCTRINE     OF    EQUITY. 

r*RQQl   ^^^^  power  in  lunacy,  or  to  *the  jurisdictions  con- 
ferred by  statute,  unless  where  such  appeal  is  ex- 
pressly given,  or  where  the  statutory  jurisdiction  is  a  mere 
extention  of  a  previous  equity.  (^) 

There  exists  a  m^arked  distinction  in  principle  between 
rehearing  and  appeal  in  regard  to  the  evidence  which  may 
be  used  on  each.  On  a  rehearing  which  is  strictly  what 
its  name  expresses,  a  second  hearing  before  the  original 
jurisdiction,  any  evidence  may  be  used,  which  might  have 
been  used  originally,  whether  it  were  in  fact  so  used  or 
not.{/cy     But  on  an  appeal,  which  is  a  resort  to  a  superior 

(i)  Bignold  v.  SprrngBeld,  7  CI.  &  F.  71. 

[k]  Wright  V.  Pilling,  Prec.  Cha.  496  ;  Lovell  v.  Ilicks,  2  Y.  &  C.  472 ; 
Herring  v.  Clobery,  Cr.  &  P.  251  ;  Roberts  v.  Marchant,  1  Phill.  371. 

^  There  are  but  two  grounds  upon  which  a  petition  for  a  rehearing  will 
be  entertained :  first,  for  error  of  law  apparent  on  the  face  of  the  decree, 
and  any  part  of  the  record  may  be  resorted  to  for  the  purpose  of  making 
such  error  manifest ;  second,  for  newly  discovered  testimony  ;  and  this  tes- 
timony must  be  important,  and  must  materially  vary  the  case  made  •,  it 
must  not  be  cumulative  as  to  the  evidence  which  was  before  the  Court  upon 
the  trial ;  and  it  must  be  such  as  the  party  petitioning  for  a  rehearing  was 
not  aware  of  before  the  trial,  and  could  not  by  proper  diligence  and  inquiry 
have  discovered :  Hunt  v.  Smith,  3  Rich.  Eq.  465  ;  Thompson  v.  Edwards, 
3  W.  Va.  659 ;  Hill  v.  Bowyer,  18  Gratt.  (Va.)  364 ;  Kemp  v.  Mitchell,  29 
Ind.  163.  Upon  a  rehearing  no  evidence  can  be  gone  into  which  was  in 
the  case  at  the  original  hearing  and  capable  of  being  then  produced :  Story, 
J.,  in  Jenkins  v.  Eldredge,  3  Story  299,  But  where  evidence  in  the  case 
was  omitted  to  be  read  at  the  original  hearing,  such,  for  example,  as  a 
document,  or  where  the  proof  of  an  exhibit  in  the  original  cause  was 
omitted,  the  Court  will  make  an  order  allowing  them  to  be  read  or  proved, 
saving  just  exceptions  :  Ibid. 

Rehearings,  when  asked  for  on  the  ground  of  newly-discovered  evidence, 
are  mainly  governed  by  the  same  considerations  that  apply  to  cases  where 
leave  is  asked,  after  publication  of  testimony,  and  before  the  hearing,  to 
file  a  supplemental  bill,  to  bring  forward  such  new  evidence ;  or  where, 
after  a  decree,  leave  is  asked  to  file  a  bill  of  review  on  like  ground :  Daniel 
V.  Mitchell,  1  Story  198.     See,  also.  Baker  v.  Whiting,  Id.  218. 

Where  a  party  has  had  it  in  his  power  to  ascertain  the  importance  of 


OF    THE     REHEARING     AND    APPEAL.  763 

jurisdiction  to  determine  whether  the  Court  below  was 
right,  no  evidence  can  be  tendered  except  that  which  is 
entered  as  read  in  the  decree,  or  the  rejection  of  which  is 
a  ground  of  appeal.  (/)^ 

(I)  Eden  v.  Lord  Bute,  1  B.  P.  C.  465i 

testimony  before  the  hearing  of  his  case,  and  has  neglected  to  do  so,  and 
to  obtain  the  testimony,  a  rehearing  will  not  be  granted  on  the  ground 
that  the  importance  of  the  evidence  had  been  ascertained  after  the  deci- 
sion, although  the  justice  of  the  case  might  be  promoted  by  it :  Prevost  v. 
Gratz,  Peters  C.  C.  365 ;  see,  also.  Cock  v.  Evans,  9  Yerg.  287  ;  Cleland  v. 
Gray,  1  Bibb  38  ;  Bentley  v.  Phelps,  3  Wood.  &  M.  403. 

If  the  court  will  at  all  grant  a  rehearing,  where  the  newly-discovered 
evidence  consists  wholly  of  confessions  made  by  the  plaintiff  since  the  de- 
cree, it  will  be  only  when  the  confessions  are  of  the  most  full  and  direct 
character,  and  are  proved  by  disinterested  testimony,  and  not  susceptible 
of  different  interpretations :  Daniel  v.  Mitchell,  ubi  supra. 

In  Hinson  v.  Pickett,  2  Hill  Ch.  351,  it  was  held  that  a  rehearing 
should  not  be  granted  in  any  case  on  the  ground  of  after-discovered  oral 
evidence.  And  a  rehearing  is  never  granted  upon  new  evidence,  which  is 
merely  cumulative  to  the  litigated  facts  already  in  issue,  or  which  is  de- 
signed to  contradict  the  witnesses  examined  by  the  adverse  party  :  Wal- 
worth, Ch.,  Dunham  v.  Winans,  2  Paige  24 ;  Baker  v.  Whiting,  ubi  supra. 
McDougald  r.  Dougherty,  39  Ala.  409  ;  Nisbett  v.  Cautrell,  32  Ga.  294 ; 
Powell  V.  Batson,  4  W.  Va.  610. 

A  rehearing,  however,  will  sometimes  be  ordered  on  terms,  though  in 
strictness  no  rule  of  law  has  been  violated,  as  where  it  appears  that  by 
the  rejection  of  evidence  offered,  the  party  prevailing  has  obtained  an  un- 
conscientious advantage  :  Simms  v.  Smith,  11  Ga.  195. 

The  Supreme  Court  of  the  United  States  will  not  allow  a  case,  even  a 
suit  in  equity,  once  argued  before  it  and  decided,  though  by  an  equally 
divided  court,  to  be  re-argued,  unless  one  of  the  judges  who  concurred  in 
the  judgment,  desires  it ;  in  which  case,  the  court  will  order  a  re-argument 
without  waiting  for  the  application  of  counsel:  Brown  t?.  Aspden,  14  How. 
U.  S.  25.  Nor  will  the  court  grant  a  rehearing  where  the  case  has  been 
remitted  to  the  court  below :  Peck  v.  Sanderson,  18  How.  U.  S.  42. 

^  An  appeal  from  a  final  decree  opens  up  the  whole  merits  for  investi- 
gation which  were  involved  in  or  connected  with  the  subjectrmatter  of 
such  decree:  Teaffr.  Hewitt,  1  Ohio  St.  N.  S.  511.  And  so  an  appeal 
from  a  decree  upon  a  cross-bill  opens  the  whole  ease  presented  both  by 
the  original  and  cross-bill ;  though  there  be  no  appeal  from  the  decree  dis- 
missing the  original :  Woodrum  v.  Kirkpatrick,  2  Swan  218. 

None  but  parties  to  the  decree  are  entitled  to  take  an  appeal :  Mckim  v. 


764  ADAMS's    DOCTRINE    OF    EQUITY. 

The  manner  of  obtaining  a  rehearing,  or  of  making  an 
appeal,  is  by  petition  stating  the  order  or  decree  com- 
plained of,  and  the  subsequent  orders,  if  any  have  been 
made,  and  praying  in  the  one  case  for  a  rehearing,  in  the 
other  for  a  reversal  or  variation,  (w)  The  petition  is 
signed  by  two  counsel,  who,  in  the  case  of  an  appeal,  must 
have  been  either  counsel  in  the  cause  below,  or  must  at- 
tend as  counsel  on  the  appeal ;  and  must  be  accompanied 
by  a  certificate  that  in  their  opinion  there  is  a  reasonable 
cause  for  rehearing  or  appeal,  (w)  It  is  not  necessary, 
though  sometimes  convenient,  that  the  petition  should 
state  the  ground  of  objection,  (o)^  But  on  an  appeal  to 
the  Lords  it  is  required,  that  besides  the  mere  petition  of 
appeal,  each  party  should  deliver  a  printed  case,  signed 
by  counsel,  (p)  containing  a  narrative  of  facts,  and  a  sum- 
mary of  the  reasons  on  which  he  relies,  and  accompanied 
by  an  appendix  of  evidence. 

r*4001  *^^  order  to  warrant  a  rehearing  or  appeal,  it  is 
sufficient  that  some  litigated  question  has  been 
decided,  and  that  it  is  certified  by  counsel  to  be  fit  for 
reconsideration.  But  it  is  essential  that  the  decision  be 
on  a  litigated  point,  and,  therefore,  a  decree  by  consent  is 

(m)  50th  Order  or  1841 ;  Macqueen  131. 
(n)  Wood  V.  Milner,  IJ.  &  W.  616. 
(o)  Giffard  v.  Hort,  1  Sch.  &  L.  398. 
ip)  2  Dan.  1367. 

Mason,  3  Md.  Ch.  186.  And  in  general  no  appeal  can  be  taken  by  a 
party,  until  all  the  questions  in  the  cause,  as  to  others  as  well  as  himself, 
are  settled.  Where,  however,  the  claims  of  the  complainant  against 
several  defendants  are  several  and  distinct,  and  a  separate  decree  is  made 
as  to  one  without  interfering  with  the  rest,  the  defendant  thus  affected 
may  have  an  appeal,  though  the  rest  of  the  case  may  be  undisposed  of: 
Dougherty  v.  Walters,  1  Ohio  St.  N.  S.  201. 

^  A  petition  for  rehearing  should  state  the  grounds  on  which  it  is  asked : 
Wiser  v.  Blachly,  2  Johns.  Ch.  488. 


OF     THE    REHEARING    AND    APPEAL.  765 

excluded.  ($')^  A  decree  made  on  default  of  appearance  at 
the  hearing,  is  also  incapable  of  being  appealed  from  or 
reheard,  unless  a  special  ground  be  shown  for  indul- 
gence, (r)  And  in  cases  where  the  bill  has  been  taken 
pro  confesso,  the  defendant,  though  he  may  obtain  a  re- 
hearing, must  waive  any  objection  to  the  pro  confesso 
order,  and  must  submit  to  pay  such  costs  as  the  Court 
shall  direct,  {s)  If  the  costs  of  suit  are  in  the  nature  of 
relief,  a  miscarriage  respecting  them  will  be  a  sufficient 
ground  of  complaint ;  e.  g.,  where  they  are  improperly 
given  or  refused,  out  of  an  estate  or  fund.  But  the 
ordinary  costs  of  suit  are  discretionary  with  the  Court, 
and  if  the  decision  on  the  merits  is  admitted  to  be  correct, 
the  Court  will  not  rehear  it  on  a  mere  question  of 
costs.  (^)^  It  is  otherwise  if,  without  going  into  the 
merits,  it  is  apparent  on  the  face  of  the  decree  that 
the  order  as  to  costs  is  at  variance  with  a  settled  prac- 
tice, (m) 

With  respect  to  costs  of  a  rehearing  or  appeal,  it  is 
held,  that  whatever  be  its  result,  no  costs  can  be  given 
against  the  respondent,  if  he  confines  himself  to  supporting 
the  original  decree ;  {v)  but  that  in  the  event  of  an  affirm- 
ance or  a  trifling  variation,  they  will  generally  be  given  to 

(5)  Wood  r.  Griffith,  1  Meriv.  35,  270 ;  Woodmason  v.  Doyne,  10  CI. 
&  F.  22  ;  2  Dan.  1331. 

(r)  Booth  V.  Creswicke,  Cr.  &  P.  361 ;  44th  Order  of  August,  1841 ; 
Stubbs  V. ,  10  A'es.  30. 

(#)  89th  Order  of  1845  ;  1  Dan.  480. 

[t)  2  Dan.  1334. 

(«)  Attorney-General  v.  Butcher,  4  Kuss.  181  ;  Taylor  v.  Southgate,  4 
M.  &  C.  V03  ;  Angell  v.  Davis,  Id.  360  ;  Chappell  v.  Purday,  2  Phill.  227 ; 
2  Dan.  1334-5. 

(»)  2  Dan.  1355. 

»  Coster  V.  Clarke,  3  Edw.  Ch.  405. 

*  See  Travis  v.  Waters,  1  Johns.  Ch.  48 ;  Eastburn  v.  Kirk,  2  Id.  317. 


766  ADAMS's    DOCTRINE    OF    EQUITY. 

him.^  And  in  the  case  of  an  appeal,  which  is  a  step 
beyond  the  ordinary  procedure  in  a  cause,  they  will  some- 
times be  so  given,  though,  on  a  rehearing  below,  no 
*costs  would  have  been  given,  or  they  would  have 
'-        -I    been  paid  out  of  the  estate. 

The  effect  of  a  successful  rehearing  or  appeal  is  obvi- 
ously to  render  useless,  either  wholly  or  in  part,  any  pro- 
ceedings under  the  original  decree.  It  does,  not,  however, 
follow  that  they  will  be  saved  during  its  pendency ;  for  it 
is  presumed  until  reversal  that  the  decreeHis  right ;  and 
if  there  are  special  grounds  for  requiring  their  stay,  a 
distinct  application  must  be  made  to  the  discretion  of  the 
Court.  If  an  order  to  stay  them  is  made,  it  may  be  ac- 
companied, in  a  case  of  rehearing,  by  an  order  to  advance 
the  cause,  or  in  the  case  of  an  appeal,  by  a  requirement 
that  a  similar  order  be  applied  for  in  the  House  of  Lords,  (w) 

(w)  Storey  v.  Lennox,  1  M.  &  C.  685 ;  Corporation  of  Gloucester  v. 
Wood,  3  Hare  150;  1  Ph.  493;  Garcias  v.  Ricardo,  Id.  498;  Drake  v. 
Drake,  3  Hare  523  ;  2  Smith,  C.  P.  74. 

^  Costs  on  appeal  are  now  regulated  by  statute  in  most  of  the  United 
States.  Where  there  are  no  special  provisions  on  the  subject,  the  general 
rule  still  appears  to  be  to  give  the  appellant  no  costs  on  the  reversal  of 
the  decree:  Evertson  v.  Booth,  20  Johns.  499;  Murray  v.  Blatchford,  2 
Wend.  221 ;  Burrows  v.  Miller,  3  Bibb  77 ;  see  The  Margaret  v.  The  Con- 
estoga,  2  Wall.  Jr.  116;  and  to  give  the  appellee  his  costs  on  affirmance : 
3Iowattf.  Carow,  7  Paige  328;  Boyd  v.  Brisban,  11  Wend.  529;  March 
V.  Thompson,  1  Litt.  310. 


OF    THE    CROSS-BILL.  767 


*CHAPTER    IX.  [*402] 

OF   THE    CROSS-BILL;    BILL    OF    REVIVOR,    AND   OF    SUPPLEMENT; 
AND    OF    THE    BILL    TO    EXECUTE    OR    TO    IMPEACH    A    DECREE. 

In  the  observations  which  have  been  hitherto  made  on 
procedure  in  equity,  three  things  have  been  assumed; 
viz.,  1.  That  a  decree  on  the  plaintiff's  bill  will  determine 
the  litigation;  2.  That  the  bill  is  properly  framed  at  the 
outset  for  obtaining  that  decree;  and  3.  That  the  suit  is 
conducted  to  its  termination  without  interruption  or  de- 
fect. It  is  obvious  that  these  assumptions  cannot  always 
be  correct;  and  it  is  therefore  requisite,  before  quitting 
the  subject,  to  consider  the  means  of  remedying  any  such 
imperfections  as  may  occur. 

The  first  class  of  imperfection  is,  where  a  decree  on 
the  plaintiff's  bill  will  not  determine  the  litigation.^    This 

'  The  Court  sometimes,  in  its  discretion,  when  it  appears  that  the  suit  is 
insuflBcient  to  bring  before  the  Court  the  rights  of  all  the  parties,  and  the 
matters  necessary  to  a  just  determination  of  the  cause,  will  at  the  hearing 
before  publication,  direct  a  cross-bill :  Kent,  Ch.,  in  Field  v.  Schieffelin,  7 
Johns.  Ch.  250.  But  see,  in  general,  Sterry  v.  Arden,  1  Id.  62 ;  and 
White  V.  Buloid,  2  Paige  164,  wherein  the  subject  of  cross-bills  is  dis- 
cussed. 

The  ordinary  course  of  the  Court  is  not  to  stop  the  progress  of  a  cause, 
unless  a  cross-bill  is  filed  in  due  time :  Eddleston  v.  Collins,  3  De  G.,  M. 
&  G.  1  ;  17  Jur.  331  ;  per  L.  J.  Turner.  In  England,  as  a  general  rule,  a 
cross-bill  must  be  filed  before  publication  passed ;  but  in  Georgia  it  is 
held,  that  it  must  be  filed  before  the  pleadings  are  made  up.  Time  for 
filing  the  cross-bill,  however,  may  be  enlarged  on  cause  shown  :  Josey  ». 
Rogers,  13  Ga.  478 ;  Sterry  v.  Arden,  1  Johns.  Ch.  62  5  Story  Eq.  PI.  § 
395. 

By  the  Eules  in  Eq.  U.  S.,  No.  Ixxii.,  it  is  provided  that  where  a  de- 


768  ADAMS's    DOCTRINE    OF    EQUITY. 

imperfection  may  arise  either  from  cross  relief  or  disco- 
very being  required  by  the  defendants,  or  from  the  exist- 
ence of  litigation  between  co-defendants.^  In  either  case 
it  is  remedied  by  one  or  more  cross-bills,  filed  by  one  or 

fendant  in  equity  files  a  cross-bill  for  discovery  only  against  the  plaintiff 
in  the  original  bill,  the  defendant  in  the  original  bill  shall  first  answer 
thereto,  before  the  original  plaintiff  shall  be  compellable  to  answer  the 
cross-bill.  The  answer  of  the  original  plaintiff  to  such  cross-bill  may  be 
read  and  used  by  the  party  filing  the  cross-bill  at  the  hearing,  in  the  same 
manner,  and  under  the  same  restrictions  as  the  answer  praying  relief  may 
now  be  read  and  used.  A  party  filing  a  cross-bill  must  take  steps  to  ob- 
tain an  answer,  make  an  issue  and  have  a  hearing,  at  the  same  time  with 
the  original  bill :  Reed  v.  Kemp,  16  111.  445.  An  answer  to  a  cross-bill  is 
substantially  a  replication  to  an  original  bill :  Whyte  v.  Arthur,  2  Green 
(N.  J.)  521. 

A  cross-bill,  formal  in  other  respects,  but  which  omits  the  prayer,  that 
it  be  allowed  as  such,  and  heard  with  the  original  bill  is  amendable  ;  and 
on  application  to  the  chancellor,  in  vacation,  to  dissolve  an  injunction  ob- 
tained on  the  bill,  should  be  regarded  by  him  pro  hac  vice,  as  amended : 
Nelson  v.  Dunn,  15  Ala.  501. 

In  Pennsylvania  (Rule  xli.)  cross-bills  for  discovery  only  are  abolished. 

An  original  and  a  cross-bill  make  but  one  suit,  and  when  the  original  is 
dismissed,  the  dismissal  carries  with  it  the  cross-bill :  Eldcrkin  v.  Fitch,  2 
Carter  (Ind.)  90;  Cockrell  v.  Warner,  14  Ark.  34G  ;  see  also,  Randolph's 
Appeal,  06  Penn.  St.  178.  So  when  a  question  raised  by  a  bill  has  been 
adjudicated,  it  cannot  be  reheard  upon  cross-bill  and  answer:  Barker  v. 
Belknap's  Estate,  39  Verm.  168.  And  on  the  other  hand,  where  a  defend- 
ant files  a  cross  bill  founded  on  matters  clearly  cognisable  in  equity,  the 
cross-bill  will  supply  any  defect  in  jurisdiction:  Id.  If  the  original  bill 
•is  without  equity,  or  if  it  is  inconsistent  with  the  answer,  the  cross-bill 
cannot  be  sustained :  Dill  v.  Shanan,  25  Ala.  694.  New  parties  cannot  be 
introduced  by  a  cross-bill:  Shields  v.  Barrow,  17  How.  U.  S.  130  contra, 
in  Illinois,  Jones  v.  Smith,  14  111.  229. 

In  Arkansas,  if  a  defendant  denies  in  his  answer  the  allegations  of  the 
bill,  and  sets  forth  a  complaint  against  the  complainant,  calls  for  an  an- 
swer and  prays  for  a  decree,  this  is  considered  for  all  substantial  purposes 
as  a  cross-bill :  Allen  v.  Allen,  14  Ark.  666. 

See  as  to  costs  on  a  cross-bill  dismissed  on  dismissal  of  original  bill: 
Derbyshire  v.  Home,  5  De  G.  &  Sm.  702 ;  affirmed  3  De  G.,  M.  &  G.  80. 

'  See  Talbot  v.  McGee,  4  Monr.  375;  Anderson  u.  Ward,  6  Id.  419 ;  Ed- 
dleston  v.  Collins,  17  Jur.  331 ;  3  De  G.,  M.  &  G.  1. 


OF    THE    CROSS-BILL.  769 

move  of  the  defendants  against  the  plaintiff,  and  against 
such  of  their  co-defendants,  as  the  cross  relief  may  affect/ 
If  this  has  not  been  done  and  the  difficulty  appears  at  the 
hearing,  the  cause  may  be  directed  to  stand  over  for  the 
purpose.  A  cross-bill  may  also  be  filed  to  answer  the 
purpose  of  a  ])lesi  puts  darrein  continuance,  where  a  new 
defence  arises  after  answer ;  but  not  for  the  purpose  of 
indirectly  altering  the  answer  itself.  (<«)^  '^The  pmqo-] 
proper  frame  of  a  cross-bill  is,  that  it  should  state 
the  original  bill  and  the  proceedings  thereon,  and  the 
rights  of  the  party  exhibiting  the  bill,  which  are  neces- 
sary to  be  made  the  subject  of  cross  litigation,  on  the 
ground  on  which  he  resists  the  claims  of  the  plaintiff  in 
the  original  bill,  if  that  is  the  object  of  the  new  bill."^    But 

(a)  1  Dan.  565. 

1  Armstrong  v.  Pratt,  2  Wise.  299. 

^  Miller  v.  Fenton,  11  Paige  18  ;  Taylor  v.  Titus,  2  Edw.  Ch.  135  ;  White 
t'.  Bullock,  3  Id.  453 ;  Graham  v.  Tankersley,  15  Ala.  634 ;  Draper  v.  Gordon, 
4  Sandf.  Ch.  210  ;  Andrews  v.  Ilobson,  23  Ala.  219 ;  Lambert  v.  Lambert, 
52  Maine  544 ;  Pearson  v.  Darrington,  32  Ala.  274. 

'  A  cross-bill  is  a  matter  of  defence.  It  cannot  introduce  new  and  dis 
tinct  matter  not  embraced  in  the  original  suit,  and,  if  it  does  so,  no  decree 
can  be  founded  on  those  matters:  Galatian  v.  Erwin,  Hopk.  48;  s.  c.  8 
Cowen  361 ;  May  v.  Armstrong,  3  J.  J.  Marsh.  262  ;  Daniel  v.  Morrison's 
Ex'rs.,  6  Dana  186 ;  Fletcher  v.  Wilson,  1  S.  &  M.  Ch.  376 ;  Draper  r. 
Gordon,  4  Sandf.  Ch.  210 ;  Josey  v.  Rogers,  13  Ga.  478  ;  Slason  v,  Wright, 
14  Verm.  208  ;  Rutland  v.  Paige,  24  Id.  181 ;  Draper  v.  Gordon,  4  Sandf. 
Ch.  210 ;  Cross  v.  De  Valle,  1  Wall.  S.  C.  14;  Kurd  v.  Case,  32  III.  45; 
Homer  v.  Hanks,  22  Ark.  572.  But  it  seems  that  a  cross-bill  may  set  up 
additional  facts  not  alleged  in  the  original  bill,  where  they  constitute  part 
of  the  same  defence,  relative  to  the  same  subject-matter.  See  Underbill  v. 
Van  Cortlandt,  2  Johns.  Ch.  339,  355.  So,  though  the  allegations  of  a 
cross-bill  must  relate  to  the  subject-matter,  it  is  not  restricted  to  the  issues 
of  the  original  bill :  Nelson  v.  Dunn,  15  Ala.  501.  Thus,  where  the  plaintiff 
in  the  cross-bill  seeks  discovery  in  order  to  enable  him  to  protect  himself 
against  discovery,  or  sets  up  any  special  matter  by  waj^  of  estoppel  or  in 
49 


770  ADAMS's    DOCTRINE    OF    EQUITY. 

a  cross-bill  being  generally  considered  as  a  defence,  or  as 
a  proceeding  to  procure  a  comjolete  determination  of  a 
matter  already  in  litigation  in  the  Court,  the  plaintiff  is 
not,  at  least  as  against  the  plaintiff  in  the  original  bill, 
obliged  to  show  any  ground  of  equity  to  support  the  juris- 
diction of  the  Court. (i)^ 

The  second  class  of  imperfection  arises  where  the  bill 
is  framed  improperly  at  the  outset.  This  imperfection 
ought  regularly  to  be  rectified  by  amendment ;  but  if  the 
time  for  amendment  has  elapsed,  it  may  be  rectified  by  a 
supplemental  bill,  or  by  a  bill  in  the  nature  of  supplement, 
the  character  of  which  bills  will  be  considered  under  the 
head  of  imperfections  of  the  third  class. 

(6)  Mitf.  80-83 ;  Farquharson  v.  Seton,  5  Russ.  45;  Cottingham  v.  Lord 
Shrewsbury,  3  Hare  627 ;  Sanfoi^  v.  Morrice,  11  CI.  &  F.  667. 

bar,  it  is  not  obnoxious  to  the  objection  of  introducing  new  matter  into  the 
suit:  Josey  v.  Rogers,  13  Ga.  478. 

A  defendant,  however,  cannot  file  a  cross-bill  where  his  rights  are  fully 
protected  by  his  answer:  Morgan  v.  Smith,  11  111.  194.  A  plaintiflP  in  a 
cross-bill  is  not  allowed  to  contradict  his  answer  to  the  original  bill.  If  he 
has  made  a  mistake  as  to  the  facts  in  his  answer,  the  only  mode  of  cor- 
recting it  is  by  application  for  leave  to  amend  the  answer,  or  file  a  supple- 
mental one,  and  not  by  the  exhibition  of  a  cross-bill :  Graham  v.  Tankersley, 
15  Ala.  634 ;  Jackson  v.  Grant,  3  Green  (N.  J.)  145. 

It  would  seem  that  when  a  defendant  is  desirous  of  impeaching  a  deed 
on  which  the  complainant's  case  depends,  he  must  file  a  cross-bill,  and 
cannot  rafse  the  defence  by  answer:  Eddleston  v.  Collins,  17  Jur.  331 ;  3 
DeG.,  M.  &G.  1. 

Evidence  taken  on  the  cross-bill,  where  it  is  properly  brought,  may  be 
used  in  the  original  suit ;  but  where  the  cross-bill  makes  a  new  case,  evi- 
dence therein  cannot  be  used  in  the  original  suit :  Draper  v.  Gordon,  4 
Sandf.  Ch.-210;  Gray  v.  Haig,  21  L.  J.  Ch.  542. 

'  See  Cartwright  v.  Clark,  4  Metcalf  104  ;  Nelson  v.  Dunn,  15  Ala.  501 ; 
Lambert  v.  Lambert,  52  Maine  544. 

A  decree  upon  a  cross-bill,  pending  the  original  suit,  is  not  a  final  decree, 
from  which  an  appeal  can  be  taken,  under  the  Act  of  Congress :  Ayres  v. 
Carver,  17  How.  391.  Demurrer  will  lie  to  a  bill  called  a  cross-bill,  if  it 
is  not  really  so :  Moss  v.  Anglo  Egyptian,  &c.,  Co.,  L.  R.  7  Chan.  108. 


OF    BILLS    OF    REVIVOR.  771 

Imperfections  of  the  third  class  are  those  which  origi- 
nate in  an  interruption  or  defect  subsequent  to  the  insti- 
tution of  the  suit,  and  they  are  rectified,  according  to 
circumstances,  by  bill  of  revivor  or  in  the  nature  of  re- 
vivor, and  by  bill  of  supplement  or  in  the  nature  of  sup- 
plement. They  occur  where,  by  reason  of  some  event 
subsequent  to  the  institution  of  the  snit,  there  is  no  person 
before  the  Court  by  or  against  whom  it  can,  either  in  whole 
or  in  part,  be  prosecuted.  They  are  technically  called 
abatements,  and  are  cured  by  a  bill  of  revivor,  or  in  the 
nature  of  revivor.  The  events  which  cause  such  abate- 
ments are,  the  death  of  any  litigant  whose  interest  or 
liability  does  not  either  determine  on  death  or  survive  to 
some  other  litigant,  and  the  marriage  of  a  female  plain- 
tiff or  co-plaintiff.  Upon  the  marriage  of  a  female  defend- 
ant the  suit  does  not  abate,  *but  the  husband  t^j^a^t 
must  be  named  in  the  subsequent  proceedings. 
And  if  a  female  plaintiff  marries,  pending  a  suit,  and  after- 
wards, before  revivor,  her  husband  dies,  a  bill  of  revivor 
becomes  unnecessary,  her  incapacity  to  prosecute  the  suit 
being  removed ;  but  the  subsequent  proceedings  ought  to 
be  in  the  name,  and  with  the  description  which  she  has 
acquired  by  the  marriage. (c)^ 

(c)  Mitf.  56-60. 

^  See  on  the  suVjjects  of  Bills  of  Revivor,  &c.,  Story  Equity  PL,  |  354,  et 
seq. ;  Boynton  v.  Boynton,  1  Foster  246.  By  the  rules  of  the  Courts  of 
Equity  of  U,  S.,  No.  Ivi.,  it  is  provided,  that  where  a  suit  of  equity  shall 
become  abated  by  the  death  of  either  party,  the  same  may  be  revived  by 
a  bill  of  revivor,  or  in  the  nature  of  revivor,  which  bill  may  be  filed  at 
any  time ;  and  upon  suggestion  of  the  facts,  a  subpoena  shall  issue,  requir. 
ing  proper  representatives  of  the  other  party  to  show  cause  why  the  cause 
should  not  be  revived ;  and  if  cause  be  not  shown,  it  is  thereupon  revived 
as  of  course,  after  a  certain  time  has  elapsed.  It  is  also  provided  by  Rule 
in  Equity  U.  S.,  No.  Ivii.,  that  it  shall  not  be  necessary,  in  a  bill  of  revivor, 
to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the  special  cir- 


772  ADAMS's    DOCTRINE    OF    EQUITY. 

It  will  be  observed,  that  in  order  to  cause  an  abatement 
it  is  essential  that  the  person  dying  be  a  litigant;  and 
therefore,  if  he  be  not  named  a  party  to  the  suit,  or  if, 
being  named,  he  die  before  appearance,  the  suit  is  not 
abated,  but  non-existent,  and  must  be  recommenced  by 
original  bill  against  his  representative,  (f?) 

It  is  also  essential  that  his  interest  or  liability  be  such 
as  does  not  either  determine  by  his  death,  or  sur^dve  to 
another  litigant.  For  if  it  determine  on  his  death,  there 
is  no  such  abatement  as  can  interrupt  the  suit  against 
the  remaining  parties,  although  if  he  be  the  only  plaintiff, 
or  the  only  defendant,  there  will  necessarily  be  an  end  of 
litigation.  If  it  survive  to  another  litigant,  and  the  cir- 
cumstances be  such  that  no  claim  can  be  made  by  or 
against  the  representatives  of  the  party  dying,  there  is  no 
abatement :  e.  g.,  if  a  bill  is  filed  by  or  against  trustees  or 
executors,  and  one  dies,  not  having  possessed  any  of  the 
property,  or  done  any  act  relating  to  it  which  may  be 
questioned  in  the  suit ;  or  if  it  be  by  or  against  husband 
and  wife,  in  right  of  the  wife,  and  the  husband  dies  under 
circumstances  which  admit  of  no  demand  by  or  against 

{d)  Crowfoot  V.  Mander,  9  Sim.  396. 

cumstances  may  require  it.  In  Pennsylvania  it  is  provided,  by  Rule  liv., 
that  whenever  the  circumstances  are  such  as  to  require  a  bill  of  revivor, 
supplemental  bill,  or  bill  in  the  nature  of  either  or  both,  or  where  addi- 
tional or  different  parties  are  required  to  be  joined,  the  same  shall  be 
made  by  way  of  amendment  or  addition  to  the  original  bill,  and  copies  of 
such  amendments  or  additions,  being  served  on  the  parties  to  the  original 
bill  or  their  counsel  on  the  record,  shall  entitle  the  plaintiff  to  proceed  as 
on  an  original  bill,  after  service.  See,  also,  Foster  v.  Burem,  1  Heisk. 
(Tenn.)  783. 

A  bill  of  revivor  cannot  be  properly  brought  upon  a  bill  for  discovery 
merely,  after  the  answer  is  put  in  and  discovery  made  ;  for  the  bill  has 
answered  its  end:  Horsburg  v.  Baker,  1  Peters'  S.  C.  236  •,  Story  Eq.  PL, 
g  371,  &c. 


OF    BILLS    OF     REVIVOR.  773 

his  representatives ;  or  again,  if  a  bill  be  filed  by  several 
creditors,  on  behalf  of  themselves  and  all  other  creditors, 
and  one  of  the  co-plaintiffs  die.  For  in  all  these  cases  the 
persons  remaining  before  the  Court  either  have  in  them 
the  whole  interest  in  the  matter  in  litigation,  or  at  least 
are  competent  to  sustain  the  suit,  and  to  call  upon  the 
Court  for  its  decree.  If  indeed,  upon  the  death  of  a  hus- 
band *suing  in  his  wife's  right,  the  widow  does  r*4^Ar-| 
not  proceed  in  the  cause,  the  bill  is  considered  as 
abated,  and  she  is  not  liable  to  the  costs.  But  if  she 
thinks  proper  to  proceed,  she  may  do  so  without  revivor, 
for  she  alone  has  the  whole  interest,  and  therefore  the 
whole  advantage  of  the  proceedings  survives  to  her ;  so 
that  if  any  judgment  has  been  obtained,  even  for  costs, 
she  will  be  entitled  to  the  benefit  of  it.  But  if  she  takes 
any  step  in  the  suit  after  her  husband's  death,  she  makes 
herself  liable  to  the  costs  from  the  beginning,  (e)  If  the 
husband  or  wife  be  made  defendants  in  respect  of  her 
inheritance,  the  husband's  death,  it  seems,  is  an  abate- 
ment of  the  suit,  and  makes  a  bill  of  revivor  necessary 
against  the  wife,  but  if  she  be  sued  in  auter  droit  a  differ- 
ent rule  appears  to  prevail.  (/)  A  decree  on  a  bill  of 
interpleader  may  terminate  the  suit  as  to  the  plaintiff, 
though  the  litigation  may  continue  betw^een  the  defend- 
ants by  interpleader,  and  in  that  case,  the  cause  may  pro- 
ceed without  revivor,  notwithstanding  the  plaintiff's 
death.  (^) 

The  effect  of  an  abatement  is,  that  all  proceedings  in 
the  suit  are  stayed  to  the  extent  of  the  abated  interest, 
viz.,  on  abatement  by  the  death  of  a  plaintiff  or  co-plain- 

(c)   Mitf.  59  ;  [Story  Eq,  PI.,  \  357,  &c.] 

(/)  White  on  Supplt.  168  ;  1  Dan.  Ch.  P.  169  ;  2  Id.  1418. 

\g)  Mitf.  60. 


\ 

774  ADAMS's     DOCTRINE    OF    EQUITY. 

tiff,  they  are  stayed  altogether ;  on  the  death  of  a  defend- 
ant they  a^e  stayed  as  to  him.  And  in  order  to  set  them 
again  in  motion,  the  suit  must  be  revived  by  order  or 
decree. 

For  the  purpose  of  obtaining  such  order  or  decree  it  is 
requisite  that  a  new  bill  be  filed,  stating  the  proceedings 
in  the  suit,  the  abatement,  and  the  transmission  of  the 
interest  or  liability,  and  praying  that  the  suit  and  pro- 
ceedings may  be  revived.  If  the  transmission  is  by  act 
of  law,  viz.,  to  the  personal  representative  or  the  heir  of 
a  deceased  party,  or  to  the  husband  of  a  married  plaintiff, 
the  bill  is  termed  a  bill  of  revivor;  and  unless  the  defend- 
ant shows  cause  against  it  by  demurrer  or  plea,  within 
r*4.on  ^  limited  time,  an  *order  to  revive  is  made.(/i) 
If  the  transmission  is  by  act  of  the  party,  viz., 
to  a  devisee,  an  original  bill  in  nature  of  a  revivor  must 
be  filed,  and  a  decree  made  at  the  hearing  to  revive  the 
suit.(/)^  The  bill,  however,  though  termed  an  original 
bill  in  respect  of  the  want  of  privity  between  the  original 
and  new  defendants,  is  framed  like  a  bill  of  revivor,  and 
will  so  far  have  the  same  effect,  that  if  the  validity  of  the 
transmission  be  established,  the  same  benefit  may  be  had 
of  the  former  proceedings.  (A-) 

There  was  also  anciently  a  practice,  where  a  suit  abated 
after  decree  signed  and  enrolled,  to  revive  the  decree  by 
subpoena  in  the  nature  of  a  scire  faeias  ;  but  this  practice 
is  now  disused,  and  it  is  customary  to  revive,  in  all  cases 
indiscriminately,  by  bill.(^) 

[h]  Pruen  v.  Lunn,  5  Russ.  3  ;  Langley  v.  Fisher,  10  Sim.  349  ;  Orders 
of  May,  1845,  61,  62;  Mitf.  69,  76,  78. 
(^)  Folland  v.  Lamotte,  10  Sim.  486. 
[k)  Mitf.  71-97.  (0  Mitf.  69,  70. 

^  See  Douglass  v.  Sherman,  2  Paige  358;  Slack  v.  Walcott,  3  Mason  508; 
Story  Eq.  PL,  §  379  ;  Ridgeley  v.  Bond,  18  Md.  433. 


OF    BILLS    OF     REVIVOR.  775 

The  liability  to  abatement,  and  the  consequent  right 
of  revivor,  are  not  limited  to  any  particular  stage  of  the 
suit.^  The  only  requisite  is,  that  there  be  some  matter 
still  in  litigation,  for  the  decision  of  which  revivor  is 
needed.  And  if  the  decree  has  been  in  all  other  respects 
performed,  the  mere  non-payment  of  costs  will  not  war- 
rant a  revivor,  except  where  they  have  been  decreed  out 
of  a  fund,  or  where  they  have  been  taxed  and  certified 
before  abatement,  so  as  to  constitute  in  equity  a  judg- 
ment debt.(w)^ 

The  principle  that  there  can  be  no  revivor  for  costs, 
precludes  any  other  person  than  the  plaintiff  or  his  re- 
presentative from  reviving  before  decree ;  for  the  plain- 
tiff may  at  his  pleasure,  dismiss  the  bill  with  costs,  and 
therefore  a  revivor  by  any  other  party  would  in  effect  be 
for  costs  alone.  If  the  plaintiff  neglect  to  revive,  the  de- 
fendant's remedy  is  to  move  that  he  may  do  so  within  a 
limited  *time,  or  that  the  bill  may  be  dismiss-  r^nioTI 
ed.{n)  It  is  otherwise  after  decree;  for  then  all 
parties  are  equally  entitled  to  its  benefit ;  and  on  neglect 
by  the  plaintiffs,  or  those  standing  in  their  riglvt,  a  de- 
fendant may  revive,  (o)^ 

The  construction  of  a  bill  of  revivor  is  similar  in  prin- 
ciple to  that  of  an  original  bill.  It  states  the  filing  of  the 
original  bill,  and  recapitulates  so  much  of  its  statements 
as  is  requisite  to  show  the  right  to  revive.  (^)     But  it 

(m)  Andrews  »•  Lockwood,  15  Sim.  153. 

(n)  1  Smith  C.  P.  659  ;  Lee  v.  Lee,  1  Hare  617 ;  Orders  of  May,  lvS45,  63. 

(o)  Mitf.  79 ;  Upjohn  v.  Upjohn,  4  Beav.  246. 

{p)  49th  Order  of  August,  1841 ;  Griffith  v.  Ricketts,  3  Hare  476. 

'  See  Peer  v.  Cookerow,  2  Beas.  136  ;  1  McCart.  361. 
'  See  Travis  v.  Waters,  1  Johns.  Ch.  85. 

'  Story  Eq.  PI.  |  372.     As  to  revivor  by  one  not  a  party,  as  in  the  case 
of  an  administration  suit,  see  Williams  v.  Chard,  5  De  G.  &  Sm.  9. 


776  ADAMS's    DOCTRINE    OF    EQUITY. 

recapitulates  it  as  the  statement  of  the  original  bill,  and 
not  as  matter  of  substantive  averment ;  nor  can  such 
statement  be  contravened  by  the  defence  further  than  is 
done  by  the  answers  to  the  original  bill.(^)  It  then  states 
the  original  prayer,  of  relief,  the  proceedings  which  have 
taken  place,  and  the  event  which  has  caused  abatement, 
and  prays  that  the  suit  may  be  revived. 

In  the  case  of  a  pure  bill  of  revivor  no  answer  is  re- 
quisite, but  the  revivor  is  ordered  as  of  course,  unless 
cause  be  shown  by  demurrer  or  plea.  If,  therefore,  the 
original  bill  has  been  answered,  the  prayer  of  process  is 
for  a  siihpoma  to  revive,  and  not  to  answer ;  but  if  the 
abatement  be  before  answer,  it  prays  an  answer  to  the 
original  bill,  and  the  subpoena  is  framed  accordipgly.  In 
the  case  of  revivor  against  the  representatives  of  a  party 
chargeable,  an  answer  is  generally  asked  as  to  assets. 
But  a  bill  praying  such  an  answer,  though  generally  called 
one  of  revivor  alone,  appears  to  be  in  strictness  supple- 
mental also,  and  if  assets  be  not  admitted,  requires  a 
hearing  and  decree  for  account. 

On  an  original  bill  in  the  nature  of  a  revivor,  a  decree 
is  as  we  have  seen  the  object  sought,  and  the  subpoena 
therefore  requires  an  answer ;  and  if  the  original  bill  be 
unanswered,  it  asks  an  answer  to  that  also. 

If  a  suit  becomes  abated,  and  the  rights  of  the  parties 
r*4-081  *^^^  affected  by  any  event,  other  than  that  which 
causes  the  abatement,  e.  g.,  by  a  settlement,  it  is 
not  sufficient  to  file  a  mere  bill  of  revivor,  although  such 
a  bill  might  be  adequate  for  merely  continuing  the  suit, 
so  as  to  enable  the  parties  to  prosecute  it.  But  the  par- 
ties must  incorporate  in  their  bill  a  supplemental  state- 

{q)  Devaynes  v.  Morris,  1  M.  &  C.  213  ;  Langley  v.  Fisher,  10  Sim.  345; 
White  122. 


OF    BILLS    OF    SUPPLEMENT.  777 

ment  of  the  additional  matter ;  so  that  all  the  facts  may 
be  before  the  Court.  The  compound  bill  thus  formed  is 
termed  a  bill  of  revivor  and  supplement.  And  the  rules 
relating  to  it,  so  far  as  its  supplemental  character  is  con- 
cerned, are  the  same  with  those  which  will  be  presently 
considered  under  the  head  of  pure  supplemental  bills,  (r) 

Defects  in  a  suit  subsequent  to  its  institution  may  be 
caused,  either  in  respect  of  parties  by  the  transfer  of  a 
former  interest,  or  the  rise  of  a  new  one,  or  in  respect  of 
issues  between  the  existing  parties,  by  the  occurrence  of 
additional  facts.  And  they  are  cured  by  a  bill  of  sup- 
plement, or  in.  the  nature  of  supplement.^ 

Where  a  defect  in  respect  of  parties  is  caused  by  trans- 
fer of  an  interest  already  before  the  Court,  the  transferree 
may  be  joined  in  the  suit  by  supplemental  bill ;  but  the 
necessity  of  so  joining  him  depends  on  the  character  of 
the  transfer. 

If  the  transfer  is  by  act  of  the  party,  e.  g.,  on  assign- 

(r)  Mitf.  70,  71  ;  Bampton  r.  Birchall,  5  Beav.  330  ;  1  Ph.  568. 

'  See  on  this  subject,  Story  Eq.  PL,  ch.  viii.,  §  333,  et  seq.  A  supple- 
mental bill  is  a  mere  continuation  of  the  original  suit,  bj  or  against  a  party 
having  or  acquiring  the  interest  of  a  former  party,  and  forms,  together 
with  the  original  bill  and  the  proceedings  under  it,  but  one  record  :  Har- 
rington V.  Slade,  22  Barb.  (N.  Y.)  161.  See  also  Wright ».  Meek,  3  Iowa 
472 ;  OHara  r.  Shepherd,  3  Md.  Ch.  306.  It  is  provided  by  the  Rules  in 
Equity,  U.  S.  Cts.,  No.  Ivii.,  that  whenever  any  suit  in  equity  shall  become 
defective  from  any  event  happening  after  the  filing  of  the  bill  (as,  for  ex- 
ample, by  a  change  of  interest  in  the  parties),  or  for  any  other  reason,  a 
supplemental  bill,  or  a  bill  in  the  nature  of  a  supplemental  bill,  may  be 
necessary  to  be  filed  in  the  cause,  leave  to  file  the  same  may  be  granted  by 
any  judge  of  the  Court  upon  proper  cause  shown,  and  due  notice  to  the 
other  party,  who  must  thereupon  demur,  plead,  or  answer  thereto  within 
a  certain  time  limited. 

It  is  also  provided  by  Rules  in  Eq.  U.  S.,  No.  Iviii.,  that  it  shall  not  be 
necessary  in  such  bill  to  set  forth  any  of  the  statements  of  the  original 
suit,  unless  special  circumstances  may  require  it. 


778  ADAMS's    DOCTRINE    OF    EQUITY. 

ment  or  mortgage,  the  general  principle  is,  that  an  alien- 
ation pendente  lite  cannot  affect  the  remaining  litigants. 
And  therefore,  unless  the  alienation  disable  the  party 
from  performing  the  decree,  e.  g,,  by  conveyance  of  a 
legal  estate  or  endorsement  of  a  negotiable  security,  it 
does  not  render  the  suit  defective,  nor  the  alienee  a  ne- 
cessary party.  But  the  alienee  himself,  if  he  claim  an 
interest,  may  add  himself  to  the  cause  by  supplemental 
bill,  or  may  present  a  petition  to  be  heard  with  the  cause.  (5) 
If  it  is  necessary  to  bring  the  alienee  before  the  Court, 
r*4^0Q1  ^^®  object  is  eifected  by  *a  supplemental  bill, 
stating  the  original  bill  and  proceedings,  and  the 
subsequent  transfer,  and  praying  to  have  the  same  relief 
against  him  as  was  originally  asked  against  his  alienor. 
In  all  cases,  however,  such  an  alienee,  acquiring  his  in- 
terest pendente  lite,  is  bound  by  the  proceedings  in  the 
suit,  and  depositions  taken  after  the  assignment,  and  be- 
fore he  became  a  party,  may  be  used  against  him,  as  they 
might  have  been  used  against  the  party  under  whom  he 
claims,  (t) 

If,  on  the  other  hand,  the  transfer  be  by  act  of  law,  as 
on  bankruptcy  or  insolvency,  the  rule  as  to  alienation 
pendente  lite,  does  not  apply ;  but  the  suit  becomes  defec- 
tive for  want  of  the  assignees,  (if) ^  If,  therefore,  the 
bankrupt  is  a  defendant,  the  plaintiff  must  either  dismiss 
his  suit,  and  go  in  under  the  bankruptcy,  or  must  add  thfe 

[s]  Eades  v.  Harris,  1  N.  C.  C.  230.  But  as  to  assignment  by  a  sole 
plaintiflf,  see  Clunn  v.  Crofts,  12  Law  J.  Ch.  112 ;  White  on  Suppl.  178  5 
Booth  V.  Creswicke,  8  Sim.  352;  [and  see  Sedgwick  v.  Cleveland,  7  Paige 
287.] 

[t]  Mitf.  73,  74. 

(u)  Kitchens  v.  Congreve,  4  Sim.  420  ;  Lee  v.  Lee,  1  Ilare  621. 

'  See  on  these  distinctions,  Sedgwick  v.  Cleveland,  7  Paige  290,  accord. 


OF    BILLS     OF     SUPPLEMENT.  779 

assignees  by  supplemental  bill,  praying  the  same  relief 
against  them  as  might  have  been  had  against  the  bank- 
rupt ;(e')  and  if  the  relief  originally  asked  were  payment 
of  money,  he  should  further  pray  for  liberty  to  prove 
against  the  estate,  (iv)  If  the  bankrupt  were  a  party,  not 
in  respect  of  a  liability,  but  in  respect  of  an  interest,  the 
assignees  must  of  course  be  joined;  and  if  the  plaintiff 
neglect  to  add  them,  they  may  themselves  file  a  supple- 
mental bill  after  notice  to  him  of  their  intention,  (.t)  If 
the  plaintiff  be  the  party  becoming  bankrupt,  he  is  placed 
under  an  incapacity  (permanent  or  temporary  as  the  case 
may  be)  of  prosecuting  the  suit.  And  unless  his  as- 
signees file  a  supplemental  bill,  and  so  take  proceedings 
to  sustain  the  original  suit,  it  would  in  strictness,  after 
the  usual  time,  be  dismissed  with  costs,  for  want  of  prose- 
cution. But  in  cases  where  the  bankrupt  is  the  sole 
plaintiff,  the  modern  practice  is,  to  order  that  it  be  dis- 
missed without  costs,  unless  within  a  limited  time  a  sup- 
plemental bill  be  filed.  (^) 

*The  doctrine  as  to  alienation  by  act  of  law  is  r:^4-|A-| 
also  applicable  where  the  interest  of  a  plaintiff 
suing  in  auter  droit  entirely  determines  by  death  or  other- 
wise, and  some  other  person  becomes  entitled  in  the  same 
right;  e.  g.,  where  an  executor  or  administrator  becomes 
entitled  upon  the  determination  of  an  administration 
durante  minori  cetate  or  pendefite  lite,  and  in  such  cases 
the  suit  may  be  added  to  and  continued  by  supplemental 

(»)  Monteith  v.  Taylor,  9  Ves.  615. 

(tr)  Ex  parte  Thompson,  2  M.  D.  &  D.  761  ;  Thompson  p.  Derham,  1 
Hare  358. 

(x)  Phillips  r.  Clark,  7  Sim.  231. 

[y]  Mitf.  06,  67 ;  Lee  t\  Lee,  1  Hare  621  ;  Kilminster  v.  Pratt,  1  Id.  632; 
Whitmore  r.  Oxborrow,  1  Coll.  91. 


780  ADAMS'S    DOCTRINE    OF    EQUITY. 

bill.(^)  The  same  rule  was  formerly  applicable  on  the 
death  of  the  assignees  of  a  bankrupt  or  insolvent;  but  it 
is  now  enacted,  that  where  such  assignees  are  plaintiffs 
no  fresh  bill  shall  be  required,  but  the  names  of  the  new 
assignees  shall  be  substituted  in  the  subsequent  proceed- 
ings. («)^ 

In  the  case  also  of  a  plaintiff  suing  as  the  representa- 
tive of  a  class,  e.  g.,  of  creditors  or  legatees,  a  similar  prin- 
ciple is  applied  after  decree.  The  plaintiff,  until  decree, 
has  the  sole  interest  in  the  suit,  and  therefore  on  abate- 
ment by  his  death,  his  personal  representative  can  alone 
revive.  But,  after  a  decree,  all  the  members  of  the  class 
are  interested,  and  therefore  if  an  abatement  then  occurs, 
and  the  personal  representative  declines  to  revive,  it  is 
almost  a  matter  of  course  to  permit  any  other  member  of 
the  class  to  file  a  supplemental  bill.(^) 

When  a  defect  in  respect  of  parties  is  caused  by  the 
rise  of  a  new  interest,  it  cannot  be  remedied  by  a  sup- 
plemental bill,  but  a  bill  must  be  filed  in  the  nature  of  a 
supplement,  restating  the  case  against  the  new  party,  and 
praying  an  independent  decree.  The  reason  of  this  is, 
that  the  interest  in  respect  of  which  he  is  introduced  is 

(z)  Mitf.  64. 

(a)  6  Geo.  4,  c.  16,  s.  67 ;  7  Geo.  4,  c.  57,  s.  26  ;  Bainbrigge  v.  Blair, 
.  Younge  386  ;  Man  v.  Ricketts,  7  Beav.  484. 

(6)  Iloulditch  V.  Donegall,  1  S.  &  S.  491 ;  Dixon  v.  Wyatt,  4  Mad.  392; 
2  Dan.  Ch.  P.  1109. 

^  The  propriety  of  the  distinction  as  to  the  character  of  bill  to  be  filed 
in  the  case  of  the  determination  of  the  interest  of  the  plaintiflF  suing  in 
auter  droit,  and  of  the  determination  of  that  of  a  plaintifi"  suing  in  his  own 
right,  which  is  in  effect  incorporated  in  the  text,  from  Lord  Redesdale's 
Equity  Pleading,  is  doubted  by  Mr.  Justice  Story.  He  considers  that  in 
both  cases  the  bill  should  be  an  original  in  the  nature  of  a  supplemental 
bill,  for  it  brings  forward,  in  either  case,  new  interests  by  new  parties 
Story  Eq.  PL,  §  340,  in  note. 


OF    BILLS    OF    SUPPLEMENT.  781 

not  derived  from  any  former  litigant,  and  has  not  been 
previously  represented  in  the  suit,  so  that  he  cannot  be 
bound  by  what  has  taken  place,  but  is  entitled  to  have 
the  entire  case  proved  anew,  and  an  independent  decree 
made.  The  instance  most  usually  given  of  an  interest  of 
this  class,  is  that  of  an  ecclesiastical  *person  sue-  r^^-ii-i 
ceeding  to  a  benefice,  of  which  the  former  holder 
was  before  the  court.  The  interest  which  such  a  person 
holds -is  obviously  independent  of  the  prior  holder;  and 
therefore,  if  the  claim  is  pursued  against  him,  he  must  be 
added  to  the  suit  by  a  bill,  which  though  in  some  sense 
supplementary,  is  in  strictness  original,  and  is  called  an 
original  bill  in  nature  of  supplement.  On  such  a  bill 
a  new  defence  may  be  made ;  the  pleadings  and  deposi- 
tions cannot  be  used  in  the  same  manner  as  if  filed  or 
taken  in  the  same  cause ;  and  the  decree,  if  any  has  been 
made,  is  not  otherwise  of  advantage,  than  as  it  may  in- 
duce the  Court  to  make  a  similar  decree.  (<?) 

The  rule,  that  an  original  bill  in  nature  of  supplement 
must  re-open  the  litigation,  is  modified  in  the  case  of  a 
remainder  after  an  estate  tail,  where  such  remainder  falls 
into  possession  pending  the  suit.  Wie  have  already  seen 
that  the  estate  tail  is  held  to  represent  the  entire  inherit- 
ance, and  that,  notwithstanding  the  general  doctrine  as 
to  parties,  the  remainderman  need  not  be  before  the  Court 
until  his  estate  falls  into  possession.  When  that  event 
occurs,  he  must  be  added  to  the  suit.  The  bill  for  this 
purpose  is  in  strictness  original,  in  the  nature  of  supple- 
ment, because  the  remainderman  makes  title  under  no 
previous  litigant.  But  in  respect  of  the  rule  enabling  the 
tenant  in  tail  to  represent  the  inheritance,  it  is  so  far 

(c)  Mitf.  73  ;  Lloyd  v.  Johnes,  9  Ves.  54,  55 ;  Attorney-General  r.  Fos- 
ter, 2  Hare  81 ;  13  Siin.  282. 


782  ADAMS's    DOCTRINE    OF    EQUITY. 

treated  as  supplemental  that  the  remainderman  will  be 
bound  by  the  previous  proceedings,  unless  he  can  estab- 
lish any  special  distinction  between  his  own  case  and  his 
predecessors.  (<^?)  A  question  of  the  like  character  may 
occur  where  a  suit. has  been  commenced  against  a  tenant 
for  life  and  the  ultimate  remainderman,  and  an  interme- 
diate tenant  in  tail  has  been  born  pending  the  litigation. 
The  bill  for  adding  the  tenant  in  tail  as  a  party  will  be 
r*4-191  ^^^i^^ly  oi'iginal  in  the  ^nature  of  supplement. 
X  But  it  may  be  presumed  that  the  Court,  in  suf- 
fering the  suit  to  proceed  in  its  previous  form,  implies 
that  such  tenant  in  tail,  when  brought  before  it,  shall  be 
bound  by  the  previous  proceedings,  (e) 

The  frame  of  an  original  bill  in  nature  of  supplement, 
is  similar  to  that  of  a  supplemental  bill ;  viz.,  it  states 
the  original  bill  and  proceedings,  and  the  supplemental 
matter,  and  prays  the  same  relief  against  the  new  defend- 
ant, as  if  he  had  been  originally  a  party  to  the  suit. 
But  it  is  subject  to  the  distinction,  that  as  the  proceed- 
ings in  the  original  suit  are  not  conclusive,  an  averment 
that  certain  statements  were  made  therein  is  not  regular, 
and  the  facts  should  be  again  averred  and  put  in  issue. 
This  may  be  done  either  by  restating  the  whole  case  in 
its  original  form,  and  then  stating  that  the  original  bill 
was  filed  containing  statements  to  that  effect,  or  by  stat- 
ing the  contents  of  the  original  bill,  as  in  an  ordinary 
case  of  supplement,  coupled  with  an  averment  of  their 
correctness.  (/) 

Where  a  necessary  party  has  been  omitted  at  the  com- 
mencement of  the  suit,  but  the  regular  time  for  amend- 

{d)  Mitf.  63,  72;  Lloyd  v.  Johnes,  9  Ves.  37. 

(e)  Giffard  v.  Hort,  1  Sch.  &  L.  408 ;  Lloyd  v.  Johnes,  9  Ves.  59. 

{/)  Attorney-General  v.  Foster,  2  Hare  81 ;  Lloyd  v.  Johnes,  9  Ves.  37. 


OF    BILLS    OF    SUPPLEMENT.  783 

ment  has  been  allowed  to  pass,  he  may  in  like  manner 
be  added  to  the  suit  by  a  bill,  generally  termed  supple- 
mental, but  which  would,  perhaps  be  more  accurately 
called  original  in  the  nature  of  supplement.  (^)^ 

Where  a  defect  in  the  issue  between  the  existing  par- 
ties is  caused  by  the  occurrence  of  new  matter,  it  is 
remedied  by  a  supplemental  bill. 

It  should  be  observed,  however,  that  in  order  to  war- 
rant its  introduction,  the  new  matter  must  be  supplemen- 
tal to  the  old."  If,  therefore,  it  is  meant  to  show  a  new 
title  in  the  plaintiff,  it  is  inadmissible  ;  e.  g.,  where  a  party 
having  filed  his  bill  as  heir-at-law,  afterwards,  on  his  heir- 
ship being  disproved,  purchased  a  title  from  his  devisee ; 

for  the  ^plaintiff  must  stand  or  fall  by  such  title     ^ 

.      .  .        r*41ol 

as  he  had  when  his  bill  was  filed.  (/^)     If,  again,     •-         -* 

it  be  merely  new  evidence  of  the  original  equity,  it  does 
not  appear  necessary  to  have  a  supplemental  bill.  But 
it  seems  that  the  proper  course  would  be  to  move  specifi- 
cally for  leave  to  examine  witnesses  on  the  new  matter, 

{g)  Mitf.  61 :  Jenkins  v.  Cross,  15  Sim.  76  ;  [see  OHara  v.  Shepherd,  3 
Md.  Ch.  306.] 

(A)  Tonkin  r.  Leth bridge,  Coop.  43;  Barfield  v.  Kelly,  4  Russ.  355; 
Pritchard  v.  Draper,  1  R.  &  M.  191 ;  Mutter  ».  Chauvel,  5  Russ.  42 ;  Bamp- 
ton  V.  Birchall,  5  Beav.  330 ;  1  Phill.  568 ;  [see  Wright  v.  Vernon,  1 
Drewry  68.] 


'  So  a  complainant  who  has  dismissed  the  bill  against  a  defendant  who 
had  appeared,  if  other  of  the  defendants  object  that  he  is  a  necessary 
party,  is  entitled  to  file  a  supplemental  bill  to  bring  him  again  before  the 
court :  Wellesley  v.  Wellesley,  17  Sim.  59. 

*  A  new  title,  or  new  interest,  may  be  set  up  by  a  supplemental  bill, 
where  the  title  relied  upon  in  an  original  bill  is  sufficient  to  entitle  the 
plaintiff  to  relief;  but  a  confessedly  bad  title,  thus  relied  upon,  cannot  be 
supported  by  a  title  subsequently  acquired,  which  is  sought  to  be  intro- 
duced by  way  of  supplement :  Winn  v.  Albert,  2  Md.  Ch.  42  ;  Bank  of 
Kentucky  ».  Schuylkill  Bank,  1  Pars.  Eq.  222. 


784  ADAMs's    DOCTRINE    OF    EQUITY. 

and  to  have  their  depositions  read  at  the  hearing,  (/)  or  if 
discovery  is  required,  to  file  a  supplemental  bill  for  that 
purpose  alone.  (X") 

If  the  new  matter  be  really  supplemental,  i.  e.,  if,  leav- 
ing the  original  equity  untouched,  it  varies  the  form  in 
which  relief  must  be  given,  or  creates  the  necessity  for 
additional  relief,  the  defect  must  be  remedied  by  a  supple- 
mental bill,  stating  the  new  matter,  and  praying  the  con- 
sequent relief ;  e.  g.,  where  the  original  bill  prayed  an 
injunction  against  an  action  at  law,  but,  in  consequence 
of  the  refusal  of  an  interlocutory  injunction,  the  plaintiff 
at  law  recovered  during  the  pendency  of  the  suit.  But 
the  evidence  under  such  a  bill  must  be  confined  to  the 
new  matter  ;  and  if  publication  has  passed  in  the  original 
cause,  and  witnesses  are  examined  in  the  supplemental 
suit  as  to  matters  previously  in  issue,  their  depositions 
cannot  be  read.(/) 

If  material  facts,  which  existed  when  the  suit  began, 
are  discovered  when  the  time  for  amendment  is  passed, 
they  may  be  introduced  by  supplemental  bill,  provided 
they  corroborate  the  case  already  made;^  but  if  the 
object  of  introducing  them  is  to  vary  that  case,  so  as  to 
produce  two  inconsistent  statements,  they  are  inadmissible 
by  way  of  supplement,  and  the  plaintiff  must  obtain  special 
leave  to  amend,  (wz)^ 

(t)  Milner  v.  Harewood,  17  Ves.  148  ;  Adams  v.  Dowding,  2  Madd.  53. 

{k)  Milner  v.  Harewood.  17  Ves.  148 ;  Usborne  v.  Baker,  2  Madd.  379. 

[I)  Pinkus  V.  Peters,  5  Beav.  253  ;  Malcolm  v.  Scott,  3  Hare  39  ;  Nelson 
r.  Bridges,  2  Beav.  239 ;  .Calton  v.  Carlisle,  5  Madd.  427 ;  2  Dan.  Ch.  P. 
1490 ;  Mitf.  326. 

(m)  Mitf.  55,  62 ;  Colclough  v.  Evans,  4  Sim.  76 ;  Crompton  v.  Womb- 

^  See  Story  Eq.  PI.,  §  333 ;  Barringer  v.  Burke,  21  Ala.  765 ;  Gregory  v. 
Valentine,  4  Edw.  Ch.  282;  Hope  v.  Brinckerhoff,  Id.  348. 

*  But  where  the  subject-matter  and  title  remain  the  same,  it  is  no  ob- 


OF    BILLS    OF    SUPPLEMENT.  785 

*It  has  also  been  determined  on  an  analogous 
principle,  that  where  the  defendant  was  an  infant  ^  -^ 
at  the  date  of  the  original  bill,  so  that  no  discovery  could 
be  obtained,  the  plaintiff  might  file  a  supplemental  bill  on 
his  coming  of  age,  requiring  him  to  answer  those  inter- 
rogatories of  the  original  bill,  which  were  not  originally 
answered  by  him.(w) 

The  frame  of  a  supplemental  bill,  whether  strictly  so 
termed,  or  one  which  is  original  in  the  nature  of  supple- 
ment, is  similar  in  principle  to  that  of  an  original  bill. 
It  states  the  filing  of  the  former  bill,  and  recapitulates  so 
much  of  its  statement  as  is  required  to  show  the  bearing 
of  the  supplemental  matter ;  coupling  with  such  recapitu- 
lation, if  the  bill  be  original  in  the  nature  of  supplement, 
a  substantive  averment  that  the  statement  is  correct,  (o) 
It  then  states  the  original  prayer  for  relief,  the  proceed- 
ings in  the  suit,  and  the  supplemental  matter ;  and  con- 
cludes, if  it  be  not  for  discovery  alone,  with  the  appropriate 
prayer  for  relief.  With  respect  to  the  parties  against 
whom  process  should  be  prayed,  the  principle  which  has 
been  already  stated  in  regard  to  original  bills,  applies 
equally  to  those  of  a  supplemental  kind,  viz.,  that  all 
persons  must  be  parties  who  are  interested  in  the  relief 
sought.  The  plaintiffs  in  the  original  suit  are  in  all  cases 
so  interested,  and  must  be  joined  either  as  plaintiffs  or  as 

well,  Id.  628 ;  Attorney-General  v.  Fishmongers'  Company,  4  M.  &  C.  9 ; 
Walford  r.  Pemberton,  13  Sim.  442 ;  Blackburn  r.  Staniland,  15  Id.  64. 

(n)  Waterford  v.  Knight,  9  Bligh  X.  S.  307  ;  3  CI.  &  F.  270. 

(o)  49th  Order  of  May,  1841 ;  Vigers  v.  Lord  Audley,  9  Sim.  72;  Griffith 
V.  Kicketts,  3  Hare  476. 

/  

jection  that  a  supplemental  bill  introduces  matter  which  may  vary  the 
relief  to  which  the  complainant  is  entitled  :  Ramy  r.  Green,  18  Ala.  771  : 
Bank  of  Kentucky  r.  Schuylkill  Bank.  1  Pars.  Eq.  222. 
50 


786  A.DAMS'S     DOCTRINE     OF     EQUITY. 

defendants.  (^)  But  the  defendants  are  not  necessarily 
in  the  same  position,  and  the  test  with  regard  to  them 
appears  to  be,  that  if  any  supplemental  matter  is  intro- 
duced, which  may  affect  their  interests,  or  if  a  new  party 
is  introduced,  with  whom  they  may  have  rights  to  litigate, 
and  against  whom,  therefore  they  are  entitled  to  state  their 
case  on  the  record,  they  are  necessary  parties  to  the 
p^i-jr-i  supplemental  suit;  but  they  are  not  ^necessary 
parties,  if  the  supplemental  matter  is  immaterial 
to  them,  or  if  the  new  party  is  added  in  respect  of  an  in- 
terest in  the  plaintiff  alone.  (§')^ 

If  the  bill  be  not  for  discovery  alone,  the  cause  must 

{p)  Fallowes  U.Williamson,  11  Ves.  306. 

{q)  Mitf.  75 ;  Dyson  v.  Morris,  1  Hare  413 ;  Jones  v.  Ilowells,  2  Id. 
342 ;  Holland  v.  Baker,  3  Id.  68. 

^  A  supplemental  suit  grafts  into  the  original  suit  the  new  parties  brought 
before  the  Court  by  the  supplemental  suit,  and  enables  the  Court  to  deal 
with  the  parties  to  both  records  as  if  they  were  all  parties  to  the  same 
record.  A  defendant  to  an  original  suit  is  not  to  be  made  a  party  to  a  sup- 
plemental suit,  on  the  mere  ground  of  right  to  question  the  representative 
character  of  the  defendant  to  the  supplemental  suit :  for  his  character  to 
sustain  that  title  cannot  be  tried  in  a  Court  of  equity :  Wilkinson  v.  Fowkes, 
9  Hare  193. 

The  original  defendants  are  necessary  parties  to  a  supplemental  bill, 
where  the  supplemental  suit  is  occasioned  by  an  alteration  after  the 
original  bill  is  filed,  affecting  the  rights  and  interests  of  the  original  de- 
fendants as  represented  on  the  record ;  but  they  are  not  necessary  parties 
to  a  supplemental  bill,  where  there  may  be  a  decree  upon  the  supplemental 
matter  against  the  new  defendants,  unless  the  decree  will  affect  the  in- 
terests of  the  original  defendants ;  nor  are  they  necessary  parties  where 
the  suppleiiiental  bill  is  brought  merely  to  introduce  formal  parties:  Wil- 
kinson V.  Fowkes,  9  Hare  193. 

When  a  supplemental  bill  brings  new  parties  into  Court,  it  is  as  to  them 
a  new  suit,  and  is  to  be  considered  as  being  commenced  when  the  supple- 
mental bill  is  filed  in  the  office :  Morgan  v.  Morgan,  10  Ga.  297. 

A  supplemental  bill,  however,  is  to  be  considered  as  part  of  the  original 
bill ;  and  if,  upon  the  whole  record,  the  complainant  is  entitled  to  relief, 
it  will  be  decreed  him :  Cunningham  v.  Rogers,  14  Ala.  147. 


OF  BILLS  TO  EXECUTE  A  DECREE.      787 

be  heard  on  the  supplemental  matter  at  the  same  time 
that  it  is  heard  on  the  original  bill,  and  a  decree  must 
be  taken  in  both  suits,  or  if  the  cause  has  been  already 
heard,  it  must  be  further  heard  on  the  supplemental 
matter,  and  a  decree  taken  thereon. 

If  new  matter  occurs  or  is  discovered  after  the  decree, 
it  is  not  properly  matter  of  supplement,  but  may  be  in- 
troduced into  the  cause,  if  necessary,  by  a  bill  expressly 
framed  for  the  purpose,  and  called  a  bill  to  execute  or  to 
impeach  a  decree. 

A  bill  to  execute  a  decree  is  a  bill  assuming  as  its 
basis  the  principle  of  the  decree,  and  seeking  merely  to 
carry  it  into  effect.^  For  example,  such  a  bill  may  be 
filed  where  an  omission  has  been  made  in  consequence 
of  all  the  facts  not  being  distintly  on  the  record ;  (r)  or 
where,  owing  to  the  neglect  of  parties  to  proceed  under 
a  decree,  their  rights  have  become  embarrassed  by  sub- 
sequent events,  and  a  new  decree  is  necessary  to  ascertain 
them ;  (s)  or  where  a  decree  has  been  made  by  an  inferior 
Court  of  equity,  the  jurisdiction  of  which  is  not  equal  to 
enforce  it.  (t)  And  a  bill  of  the  same  nature  is  sometimes 
exhibited  by  a  person  who  was  not  a  party,  nor  claims 
under  a  party,  to  the  original  decree,  but  claims  in  a  simi- 
lar interest,  or  is  unable  to  obtain  the  determination  of  his 
own  rights  until  the  decree  is  carried  into  execution,  (m) 

(r)Hocl8onr.  Ball,  1  Ph.  181. 

(«)  Mitf.  95.  (0  Id.  96. 

(u)  Id.  95 ;  2  Dan.  Ch.  P.  1405 ;  Oldham  r.  Eboral,  1  Coop.  Sel.  Ca.  27. 

*  See  on  this  subject,  Story  Eq.  PL,  §  429.  A  supplemental  bill  may  be 
filed  as  well  after  as  before  a  decree  ;  and  if  after,  may  be  either  in  aid  of 
a  decree,  that  it  may  be  carried  into  full  execution,  or  that  proper  direc- 
tions may  be  given  upon  some  matters  omitted  in  the  original  bill,  or  not 
put  in  issue  by  it,  on  the  defence  made  to  it:  O'Hara  v.  Shepherd,  3  Md. 
Ch.  306. 


788  ADAMs's    DOCTRINE    OF    EQUITY. 

The  distinguishing  feature  of  a  bill  of  this  class  is,  that  it 
must  carry  out  the  principle  of  the  former  decree.  It 
must  take  that  principle  as  its  basis,  and  must  seek 
merely  to  supply  omissions  in  *the  decree  or  pro- 
L  -'  ceedings,  so  as  to  enable  the  Court  to  give  effect 
to  its  decision.  If  it  goes  beyond  this,  it  is  in  truth  a 
bill  to  impeach  the  decree,  and  is  subject  to  the  restric- 
tions which  will  be  hereafter  considered  as  imposed  on 
bills  of  that  class,  (t;)  It  appears,  however,  that  although 
the  plaintiff  in  such  a  bill  cannot  impeach  the  decree,  yet 
the  defendant  is  not  under  the  same  restriction.  If  the 
decree  can  be  enforced  by  the  ordinary  process,  it  will  be 
assumed,  until  reversal,  to  be  correct  And  even  where 
a  decree  is  required  in  aid,  the  same  assumption  will  be 
generally  made.  But  it  is  competent  for  the  Court,  in 
respect  of  the  special  application,  to  examine  the  decree, 
and  if  it  be  unjust,  to  refuse  enforcement,  (m;)^ 

A  bill  to  impeach  a  decree  is  either  a  bill  of  review,  a 
supplemental  bill  in  the  nature  of  review,  an  original  bill 
of  the  same  nature,  or  an  original  bill  on  the  ground  of 
fraud.  There  is  also  another  class  of  bills  mentioned  by 
Lord  Redesdale,  termed  "  bills  to  suspend  or  avoid  the 
operation  of  decrees."  They  appear,  however,  to  be 
adapted  only  to  contingencies  arising  from  public  events  ; 
and  as  the  instances  of  them  which  are  to  be  found  in  the 
books,  originated  chiefly  in  the  embarrassments  occasioned 

{v)  Hodsdn  v.  Ball,  11  Sim.  456;  1  Ph.  177;  Toulmin  iJ.  Copland,  4 
Hare  41 ;  Davis  v.  Bluck,  6  Beav.  393 ;  [O'Hara  v.  Shepherd,  3  Md.  Ch. 
306.] 

(tc)  Mitf.  96  ;  2  Dan.  Ch.  P.  1407  ;  Hamilton  v.  Houghton,  Bligh  0.  S.  169. 

^  In  certain  cases  a  defendant  has  the  right,  after  decree,  to  file  a  supple- 
mental bill,  to  bring  new  and  necessary  parties  before  the  court :  Lee  v. 
Lee,  17  Jur.  272  j  affirmed,  17  Jur,  607. 


OF     BILLS     OF     REVIEW.  789 

by  the  Great  Rebellion,  they  are  to  be   considered  with 
much  caution.  (;r) 

A  bill  of  review  is  used  to  procure  the  reversal  of  a  de- 
cree after  signature  and  enrolment.  It  may  be  brought 
upon  error  of  law  apparent  on  the  decree,  or  on  occurrence 
or  discovery  of  new  matter.^  In  the  former  case  the  bill 
may  be  filed  without  leave  of  the  Court,  but  the  error 
complained  of  must  not  be  mere  error  in  the  decree,  as 
on  a  mistiken  judgement,  which  would  in  effect  render  a 
bill  of  review  a  mere  substitute  for  an  appeal,  but  it  must 
be  error  apparent  on  the  face  of  the  decree,  as  in  the  case 
of  an  absolute  *decree  against  an  infant.  (^)  r^A-i"! 
Errors  in  form  only,  though  apparent  on  the 
face  of  the  decree,  and  mere  matters  of  abatement,  seem 
not  to  have  been  considered  sufficient  ground  for  review. (0) 

(z)  Mitf.  74  ;  2  Dan.  Ch.  P.  1408. 

{y)  Mitf.  84  ;  Perry  i".  Phelips,  17  Ves.  179  ;  [Ross  v.  Prentiss.  4  McLean 
106;  Seguin  v.  Maverick,  24  Texas  534  ;  Bartlett  v.  Fifield,  45  N.  H.  81.] 

(z)  Mitf.  85  ;  [Gu«rrj  v.  Perryman,  12  Ga-  14 ;  Dexter  v.  Arnold,  5  Ma- 
son 312.] 

'  See  on  this  subject,  Story  Eq.  PI.,  ^  414;  Eiddle's  Estate,  19  Penn. 
St.  433  ;  Creeds.  Lancaster  Bank,  1  Ohio  St.  N.  S-  1  ;  Ducker  r.  Belt,  3 
Md.  Ch.  13 ;  U.  S.  v.  Samperyac,  1  Hempstead  118  ;  Sloan  v.  Whiteraan,  6 
Ind.  434  ;  Rush  ».  Madeira,  14  B.  Monr.  212  ;  Clapp  v.  Thaxton,  7  Gray 
384;  Thompson  v.  Goulding,  5  Allen  8L 

In  England  it  is  held  that  the  error  in  matter  of  law,  for  which  a  bill  of 
review  will  lie,  must  be  apparent  on  the  face  of  the  decree.  In  the  United 
States  in  general,  however,  decrees  are  usually,  and  by  the  Rules  in  Equity 
in  the  United  States  Courts,  No.  Ixxxvi.,  and  in  Pennsylvania,  No.  Ixxviii., 
necessarily,  drawn  up  without  any  statement  of  the  facts  upon  which  they 
are  based,  and  without  embodying  even  the  substance  of  the  bill,  answer, 
and  other  proceedings.  Under  these  circumstances,  therefore,  the  rule  is 
80  far  modified  in  this  counta-y,  that  upon  the  whole  record,  consisting  of 
the  bill,  answer  and  other  pleadings  and  decree,  but  not  the  evidence  at 
large,  a  bill  of  review  for  error  apparent  may  be  founded :  Whiting  v.  Bank 
of  U.  S.,  13  Peters  S.  C.  6;  Dexter  v.  Arnold,  5  Mason  311  ;  Webb  v. 
Pell,  3  Paige  368 ;  Story  Eq.  PI.,  g  407 ;  Riddle's  Estate,  19  Penn.  St.  433. 


790  ADAMS's     DOCTRINE     OF     EQUITY. 

Where  a  bill  of  review  is  founded  on  the  occurrence  or 
discovery  of  new  matter,  the  leave  of  the  Court  must  be 
first  obtained ;  and  this  will  not  be  granted  except  on  an 
affidavit  satisfying  the  Court  that  the  new  matter  could 
not  by  reasonable  diligence  have  been  produced  or  used 
by  the  applicant  at  the  time  when  the  decree  was  made ; 
and  showing  also  that  such  new  matter  is  relevant  and 
material,  either  as  evidence  of  matter  formerly  in  issue, 
or  as  constituting  a  new  issue,  and  is  such  as,  if  previ- 
ously before  the  Court,  might  probably  have  occasioned 
a  different  decision.  (^5)  If  such  a  bill  is  filed  without 
leave,  it  will  be  taken  off  the  file,  or  the  proceedings 
stayed.  (^)^ 

(a)  Mitf.  84-87;  Partridge  v.  Usborne,  5  Russ.  195;  Hungate  v.  Gas- 
coyne,  2  Ph.  25 ;  [Ross  v.  Prentiss,  4  McLean  106,] 

(6)  Hodson  ».  Ball,  11  Sim.  456;  1  Ph.  177;  Toulmin  v.  Copland,  4 
Hare  41 ;  [Simpson  v.  Watts,  6  Rich.  Eq.  364 ;  Thomas  v.  Rawlings,  34 
Beav.  50 ;  Winchester  v.  Winchester,  1  Head.  460.] 

^  See,  on  the  subject  of  bills  of  review  for  newly  discovered  matter, 
Story  Eq.  PI.,  |  412. 

A  bill  of  review  for  new  facts  or  newly  discovered  facts,  must  aver  that 
such  facts  came  to  the  knowledge  of  the  complainant  within  nine  months 
prior  to  the  filing  of  his  bill :  Hitch  v.  Fenby,  4  Md.  Ch.  190 ;  Dexter  v. 
Arnold,  5  Mason  312;  Ridgeway  v.  Toram,  2  Md.  Ch.  303;  Simpson  v. 
Watts,  6  Rich.  Eq.  364 ;  Stevens  v.  Dewey,  1  Williams  (Verm.)  638.  All 
the  parties  to  the  original  decree,  or  their  representatives,  must  be  parties  : 
Friley  v.  Hendricks,  27  Miss.  412. 

So,  such  a  bill  cannot  be  maintained  where  the  newly  discovered  evi- 
dence, upon  which  the  bill  purports  to  be  founded,  goes  to  impeach  the 
character  of  witnesses  examined  in  the  original  suit.  Nor  can  it  be  main- 
tained where  the  newly  discovered  evidence  is  merely  cumulative,  and  re- 
lates to  a  collateral  fact  in  the  issue,  not  of  itself,  if  admitted,  by  any 
means  decisive  or  controlling ;  such  as  the  question  of  adequacy  of  price, 
when  the  main  question  was,  whether  a  deed  was  a  deed  of  sale  or  a  mort- 
gage :  Southard  v.  Russell,  16  How.  U.  S.  547.  The  new  matter  must  also 
be  such  as  the  party  could  not  by  the  use  of  reasonable  diligence  have 
known  :  Story  Eq.  PI.,  ^  414:  Dexter  v.  Arnold,  5  Mass.  312;  Livingston 
V.  Hubbs,  3  Johns.  Ch.  124;  Ridgeway  v.  Toram,  2  Md.  Ch.  303. 


OF     BILLS     OF     REVIEW.  791 

A  bill  of  review,  on  new  matter  discovered,  has  been 
permitted  even  after  an  affirmance  of  the  decree  in  Par- 
liament ;  but  it  may  be  doubted  whether  a  bill  of  review; 
on  error  apparent  can  be  brought  after  such  affirmance.^ 
If  a  decree  has  been  reversed  on  bill  of  review,  another 
bill  of  review  may  be  brought  upon  the  decree  of  reversal. 
But  when  twenty  years  have  elapsed  from  the  time  of 
pronouncing  a  decree,  which  has  been  signed  and  enrolled, 
a  bill  of  review  cannot  be  brought  \-  and  after  a  demurrer 
to  a  bill  of  review  has  been  allowed,  a  new  bill  of  review 
on  the  same  ground  cannot  be  brought,  (c) 

It  is  a  rule  of  the  Court  that  the  bringing  of  a  bill  of 
review  shall  not  prevent  the  execution  of  the  decree  im- 
peached, and  that  a  party  shall  not  be  allowed,  except 
under  very  ^special  circumstances,  to  file  or  pro- 
secute  such  a  bill,  unless  he  performs  at  the  pro-  '-  -' 
per  time  all  that  the  decree  commands.  ((7) '^ 

(c)   Mitf.  88.  (d!)  Ibid  ;  Partridge  c.  Usborne,  h  Russ.  195. 

'  Where  a  case  is  decided  by  an  Appellate  Court,  and  a  mandate  is  sent 
down  to  the  Court  below  to  carry  out  the  decree,  a  bill  of  review  will  not 
lie  in  the  Court  below,  to  correct  errors  of  law  alleged  on  the  face  of  the 
decree.  Resort  must  be  had  to  the  Appellate  Court:  Southard  r.  Russell. 
16  How.  U.  S.  547. 

Nor  will  a  bill  of  review  be  founded  on  newly  discovered  evidence,  after 
the  publication  or  decree  below,  where  a  decision  has  taken  place  on  an 
appeal,  unless  the  right  is  reserved  in  the  decree  of  the  Appellate  Court, 
or  permission  be  given  on  an  application  to  that  Court  directly  for  the  pur- 
pose :  Southard  ».  Russell,  ut  supra. 

*  As  to  the  time  within  which  a  bill  of  review  must  be  brought,  see  U.  S. 
V.  Samperyac,  1  Hemp.  118;  Center  v.  Pratt,  9  Md.  67;  Creath  r.  Smith, 
20  Missouri  113. 

'  The  objection  that  the  general  decree  has  not  been  obeyed  or  performed 
cannot  be  raised  by  a  general  demurrer  to  a  bill  of  review,  filed  for  the 
purpose  of  annulling  or  reversing  it.  The  objection  can  go  only  to  the 
propriety  of  filing  the  bill,  and  not  to  the  equity  of  it  when  filed  :  Cochran 
r.  Rison,  20  Ala.  463. 

In  Alabama,  the  chancellor  has  the  power  under  the  statute  of  that 


792  ADAMS's     DOCTRINE     OF     EQUITY. 

In  a  bill  of  this  nature  it  is  necessary  to  state  the 
former  bill,  and  the  proceedings  thereon ;  the  decree  and 
,the  point  in  which  the  party  exhibiting  the  bill  of  review 
conceives  himself  aggrieved  by  it,  and  the  ground  of  law 
or  the  new  matter  upon  which  he  seeks  to  impeach  it ; 
and  if  the  decree  is  impeached  on  the  latter  ground,  it 
seems  necessary  to  state  in  the  bill  the  leave  obtained  to 
file  it,  and  the  fact  that  the  new  matter  has  been  dis- 
covered since  the  decree  was  made.^  It  has  been  doubted 
whether  this  last  statement  is  traversable  after  leave  has 
been  given  to  file  the  bill.  The  bill  may  pray  simply 
that  the  decree  may  be  reviewed  and  reversed  in  the 
point  complained  of,  if  it  has  not  been  carried  into  execu- 
tion. If  it  has  been  carried  into  execution,  the  bill  may 
also  pray  the  further  decree  of  the  Court  to  put  the  party 
complaining  of  the  former  decree  into  the  situation  in 
which  he  would  have  been  if  that  decree  had  not  been 
executed.  If  the  bill  is  brought  to  review  the  reversal  of 
a  former  decree,  it  may  pray  that  the  original  decree  may 
stand.  The  bill  may  also,  if  the  original  suit  has  become 
abated,  be  at  the  same  time  a  bill  of  revivor.     A  supple- 


state  to  direct  the  decree  on  the  original  bill  to  be  stayed  in  such  manner 
as  he  may  deem  advisable ;  or  he  may  allow  the  bill  of  review  to  be  filed, 
and  let  the  complainant  proceed  with  the  execution  of  the  original  deci'ee: 
Cochran  v  Rison,  ut  supr. 

'  See  Story's  Eq.  PL,  §  420. 

It  is  not  sufficient  in  a  bill  of  review  to  refer  to  a  record  of  the  decree 
sought  to  be  reviewed,  as  a  paper  on  file  in  the  Court,  with  a  request  that 
it  may  be  made  part  of  the  bill.  It  must  be  fully  set  forth  in  the  bill,  or 
appended  as  an  exhibit:  Groce  «.  Field,  13  Ga.  24.  All  parties  to  the 
original  decree  must  be  made  parties  to  the  bill  of  review  :  Sturges  v. 
Longworth,  1  Ohio  St.  N.  S.  54 ;  but  see  Bayse  v.  Beard,  12  B.  Monr.  581. 

Where  a  demurrer  to  a  bill  of  revicAV  for  error  on  matter  of  law  is  over- 
ruled, the  decree  is  reversed,  and  the  errors  allowed  :  Guerry  r.  Ferryman, 
12  Ga.  14. 


OF     BILLS     OF     REVIEW.  793 

mental  bill  may  also  be  added  if  any  event  has  happened 
which  reijuires  it,  and  if  any  person  not  a  party  to  the 
original  suit  becomes  interested  in  the  subject,  he  must  be 
made  a  party  to  the  bill  of  review  by  way  of  supple- 
ment, {e) 

A  supplemental  bill,  in  the  nature  of  review,  is  used 
to  procure  the  reversal  of  a  decree  before  enrolment,  on 
the  occurrence  or  discovery  of  new  matter.  The  leave 
of  the  Court  must  be  obtained  for  filing  it,  and  the  same 
affidavit  is  required  for  this  purpose  as  is  necessary  to 
obtain  leave  for  a  bill  of  review.^  The  manner  of  pro- 
cedure on  such  a  bill  *is  to  petition  for  a  rehear-  r:j:_<iq-i 
ing  of  the  cause,  and  to  have  it  heard  at  the  same 
time  on  the  new  matter  introduced.  The  bill  itself  in 
its  frame  resembles  a  bill  of  review,  except  that  instead 
of  praying  that  the  former  decree  may  be  reviewed  and 
reversed,  it  prays  that  the  cause  may  be  heard  with  re- 
spect to  the  new  matter,  at  the  same  time  that  it  is 
reheard  upon  the  original  bill,  and  that  the  plaintiff  may 
have  such  relief  as  the  nature  of  the  case  made  by  the 
supplemental  bill  requires.  (/)  If  the  ground  of  com- 
plaint be  error  apparent,  it  may  be  corrected  on  a  rehear- 
ing alone,  and  a  supplemental  bill  is  unnecessary. 

An  original  bill,  in  nature  of  review,  is  applicable  when 
the  interest  of  the  party  seeking  a  reversal  was  not  before 
the  Court  when  the  decree  was  made.^     Thus,  if  a  decree 

(e)  Mitf.  88-90. 

(/)  Perry  v.  Phelips,  17  Ves.  178  ;  Mitf.  90,  91. 

'  OUara  v.  Shepherd,  3  Md.  Ch.  306  ;  Ridgeway  ».  Toram,  2  Id.  303  ; 
Cochran  r.  Rison,  20  Ala.  463. 

'  A  person  not  a  party  to  the  suit,  and  aggrieved  by  a  decree  made  in 
his  absence,  and  afterwards  served  on  him,  so  as  to  attempt  to  bind  him 
in  subsequent  proceedings,  must  move,  on  notice,  for  leave  to  file  a  bill  in 
the  nature  of  a  bill  of  review:  Kidd  v.  Cheyne,  18  Jur.  348. 


794  ADAMS's    DOCTRINE    OF    EQUITY. 

is  made  against  a  tenant  for  life,  a  remainderman  in  tail, 
or  in  fee,  cannot  defeat  the  proceedings,  except  by  a  bill 
showing  the  error  in  the  decree,  the  incompetency  in  the 
tenant  for  life  to  sustain  the  suit,  and  the  accrual  of  his 
own  interest,  and  thereupon  praying  that  the  proceedings 
in  the  original  cause  may  be  reviewed,  and  that  for  that 
purpose  the  other  party  may  appear  to  and  answer  this 
new  bill,  and  the  rights  of  the  parties  may  be  properly 
ascertained.  A  bUl  of  this  nature,  as  it  does  not  seek  to 
alter  a  decree  made  against  this  plaintiff  himself,  or  against 
any  person  under  whom  he  claims,  may  be  filed  without 
the  leave  of  the  Court.  (^) 

A  bill  to  impeach  a  decree  for  fraud  used  in  obtaining 
it  sufficiently  explains  its  own  character.^  It  may  be  filed 
without  the  leave  of  the  Court,  because  the  alleged  fraud 
is  the  principal  point  in  issue,  and  must  be  established  by 
proof  before  the  propriety  of  the  decree  can  be  investi- 
gated. And  where  a  decree  has  been  so  obtained,  the 
Court  will  restore  the  parties  to  their  former  situation, 
whatever  their  rights  may  be.  Besides  cases  of  direct 
fraud  in  obtaining  a  decree,  it  seems  to  have  been  consid- 
r*4.9n'l  ^^^^  ^^^^^  where  a  ^decree  has  been  made  against 
a  trustee,  without  discovering  the  trust,  or  bring- 
ing the  cestui  que  trust  before  the  Court,  or  against  a  for- 
mer owner  of  property  without  discovering  a  subsequent 
conveyance  or  encumbrance,  or  in  favor  of  or  against  an 
heir,  without  discovering  a  devise  of  the  subject-matter 
of  the  suit,  the  concealment  of  the  trust,  of  the  subse- 
quent conveyance  or  encumbrance,  or  of  the  will,  ought 

{g)  Mitf.  92. 

^  See  Story  Eq.  PL,  §  426 ;  Guerry  v.  Durham,  11  Ga.  9 ;  Do  Louis  v. 
Meek,  2  Greene  (la.)  55  ;  Hit^jh  v.  Fenby,  4  Md.  Ch.  190;  Person  v.  Nevitt, 
32  Miss.  180. 


OF     BILLS     OF    KEVIEW.  795 

to  be  treated  as  a  fraud.  It  has  been  also  said,  that  where 
an  improper  decree  has  been  made  against  an  infant,  with- 
out actual  fraud,  it  ought  to  be  impeached  by  original  bill. 
When  a  decree  has  been  made  by  consent,  and  the  con- 
sent has  been  fraudulently  obtained,  the  party  grieved 
can  only  be  relieved  by  original  bilL 

A  bill  to  set  aside  a  decree  for  fraud  must  state  the 
decree  and  the  proceedings  which  led  to  it,  with  the  cir- 
cumstances of  fmud  on  which  it  is  impeached.  The  pra3^er 
must  necessarily  be  varied  according  to  the  nature  of  the 
fraud  used,  and  the  extent  of  its  operation  in  obtaining  an 
improper  decree.  (^)^ 

(A)  Mitf.  93,  94. 

^  Where  a  demurrer  to  a  bill  to  set  aside  a  decree  which  has  been  ob- 
tained by  fraud,  is  overruled,  this  does  not  vacate  or  reverse  the  original 
decree,  but  the  complainant  must  proceed  to  establish  his  case  :  Guerry  v. 
Perryman,  12  Ga.  14. 


INDEX. 


THE  PAGES  KEFERRED  TO  ARE  THOSE  BETWEEN  BRACKETS  [    ]. 


ABANDON, 

contract,  notice  by  aggrieved  party 
to,  88 
ABATEMENT, 

of  suit.  403-406,  410,  417 
ABROAD, 

commission  to  examine  ■vritnesBea, 
23-25 

service  of  process,  323-327 

defendant  domiciled,  360 

plaintiff,  360 

See  Ne  Exeat  Regno. 
ABSCONDING, 

defendant,  324,  326,  328 
ABSENT  PARTY, 
•  substituted  service  on,  324 

decree  saving  rights  of,  343 

reference  to  master  as  to,  379 
See  Abroad. 
ABSTRACT  OF  TITLE, 

fraud  in,  178 

master  to  peruse,  379 
ACCEPTANCE, 

of  trusts.  27,  36 

how  evidenced,  37 
ACCIDENT, 

delay  occasioned  by,  89 

forfeiture  incurred  by,  109 

or  mistake  in  framinginstrument.166 
ACCOUNT, 

generally,  220-228 

of  committee,  293,  294 

of  legacies,  258 

of  mortgagee  in  possession,  118, 119 

of  profits  of  partnership,  244 

of  receivers,  293,  294 

of  trustee,  57,  63 

of  profits  made,  64 

discovery  as  to,  11 

fraudulent,  discovery  as  to,  5 

partnership,  jurisdiction  as  to,  239, 
240,  241 


ACCOUNT— con/inwfrf. 

in  suit  for  ascertainment  of  boun- 
daries, 237 
in  suit  for  cancellation,  191 

infringement    of    patent, 

212,  357 
injunction,  218 
partition,  232 

limit  of,  232,233 
writ  of  ne  exeat,  360 
against  guardian,  281 
dowress  entitled  to,  234 
defendant  directed  to  keep,  357 
schedule  containing,  344 
settled  or  stated,  plea  of,  337 
reference  to  Master  as  to,  379 
decree  for  taking,  259,  362 
preliminary,  380 

partj  liable  to,  see  Representatives. 
action  of.  224,  240 
ACCOUNTANT-GENERAL,  352 

See  Payment  into  Court. 
ACCUMULATION, 
trusts  for,  43,  64 
of  pin-money,  46 
presumption  of,  104 
ACKNOWLEDGMENT, 

of  trusts  or  confidence,  28 
ACQUIESCENCE, 

of  cestui  que   trust,  in  breach  of 

trust,  62 
of  purchaser,  effect  of,  87 
bv  party  to  an  account,  227,  228 
ACTION  AT  LAW, 
parties  to,  312 

discovery  in  aid  of,  18,  19,  24 
defence  to,  discovery  in  aid  of,  9 
by  mortgagee,  112,  113,  117 
directed,  375,  378,  379 

on  interpleader,  206 
See  Ejectment ;  Statute  of  LimiUX' 
tions. 


798 


INDEX. 


ACTS, 

contract  for  performance  of,  92 
specific  covenant  for  doing,  109 

See  Ownership. 
of  Parliament,  printing  of,  214 
ADMINISTRATION, 

grant  of,  litigated,  352  . 
durante  minori  state,  410 
pendente  lite,  410 
*of  testamentary  assets,  248-266 

order   of  ap- 
plication in, 
262,  263 
of  estate  of  mortgagor,  120,  121 

debtor,  130 
suit,  by  whom  instituted,  257 
costs  of,  64,  65,  390,  391 
ADMINISTRATOR, 

set-oft"  in  suits  by  or  against,  222 
action  of  account  by  or  against,  225 
appointed  by  Ecclesiastical  Court, 
248 

See  Representatives. 
ADMIRALTY  COURTS, 
proceedings  in,  198,  233 
See  Court. 
ADMISSIBILITY, 

as  witnesses,  of  parties  to  suits,  363- 
365 

See  Evidence. 
ADMISSION, 

stated  or  charged,  304.  305  ,, 

as  to  documents,  13,  et  seq.,  350 

as  to  money  in  hands  of  defendant, 

350,  351 
rendering  evidence  unnecessary,  363 
directed  on  trial  of  issue,  377 
action,  378 
See  Answer;   Copyholds. 
ADMITTANCE, 

to  copyholds,  bill  to  compel,  65, 98,99 
ADVANCEMENT, 
•    purchase  construed  as,  101 
of  ward,  286 
of  cause,  order  for,  401 
ADVANCES, 

future,  by  mortgagee,  163-165 
ADVERTISEMENT, 

for  creditors,  legatees,  and  next  of 
kin,  262 
ADVICE 

given,  discovery  as  to,  6,  343,  344 
ADVOWSON, 

trust  to  purchase,  71,  72 
See  Living ;  Presentation. 
AFFIDAVIT 

to  bill  to  perpetuate  testimony,  24, 

331 
to  interpleader,  206,  231 


AFFIDAVIT— con/m?/C(f. 

by  shipowners,  207 
on  application  for  production  of  doc- 
uments, 15,  18,  331 

to  stay  separate  proceed- 
ings, 259 
to  amended  answer,  346 
to  obtain  interlocutory  or- 
ders, 348,  355,  356 
to  grant   injunction,  355, 

356 
to  extend  injunction,  195 
to  dissolve  injunction,  355, 

356 
for  leave  to  file  a  bill  of 
review,  417,  418 
in  cause,  use  of,  before  master,  383 
for   examination   after  publication, 

372 
to  prove  document  at  hearing,  373 
as  to  instrument  destroyed  or  lost, 
167,  331 
AFFIRMATIVE, 

pleas,  337 
AGENT, 

notice  to,  157 

bill   by,  against  principal,   for  ac- 
count, 221 
bill  of  interpleader  by,  204 
inquiry  as  to  wilful  default  of,  221 
to  sell  or  buy,  184 
neglecting  to  render  accounts,  220, 
221,  222  , 

mixing  up  his  own  with  his  princi- 
pal's property,  222 
making  profit  for  himself,  222 
account  against,  221 
substituted  service  on,  324 
AGREEMENT, 

under  Statute  of  Frauds,  85,  86 
to  deposit  deeds,  124 
to  refer  to  arbitration,  192 
on  behalf  of  infants,  285 

lunatic,  295,  296 
instrument  executed  in  pursuance 

of,  169 
written,  see  Misrepresentation. 
See  Parol;  Purchase. 
ALIEN, 

discovery  as  to,  5 

trust  of  real  estate  for,  42,  50,  51 

trust  to  sell  and  pay  proceeds  to, 

137,  138 
enemy,  disability  of,  to  sue,  331 
ALIENATION 

of  trust,  restraint  on,  42 
pendente  lite,  by  act  of  party,  408 
by    act    of   law,  404, 
409 


INDEX. 


799 


ALIENEE, 
with  notice,  rights  of,  273 
pendente  lite,  408,  409 
bound  by  proceedings  in  suit,  409 
ALIMONY, 
■what,  46 

arrears   of,   ground  for  writ  of  ne 
exeat  regno,  360 
ALLEGATION, 
in  bill,  306 

See  Statement;   Charges. 
ALLOWANCE, 

of  exceptions,  386,  387 
ALTERATION.    See  Instrument;  Con- 
version ;   Decree. 
AMENDMENT, 

of  bill,  304,  342,  346, 

right  as  to,  346 

when  time  for,  passed,  412, 

413 
leave  for,  380 
special  leave  for,  413 
after  allowance  of  plea,  342 
at  hearingliberty  of,  342, 343 
of  answer,  346 
of  state  of  facts,  383 
AMERICAN  COURTS,  121 
ANNUITIES, 

life,  sale  of.  83 
ANOMALOUS  PLEA,  338 
ANSWER, 

rules  as  to,  8,  et  seq. 
what  a  defendant  must,  308 
of  one  defendant,  effect  of,  as  against 
another,  20 

as  respects 
himself, 
20,  21 
prolixitj'  of.  11 
suggestion  in,  of  matter  for  inquiry, 

21 
positive  denial  in,  effect  of,  21 
admissions  hy,  363 

as  to  documents,  14, 
et  seq.  ■' 
how  read  in  equity,  21 

at  law,  21 
defence  by,  342-347 

when   bill   demurrable, 
336 
protection  from  discovery  by,  4 
in    support  of  plea,  332,  337,  339, 

340 
plea  directed  to  stand  for,  342 
use  of,  as  evidence,  363 
to  bill  for  administration,  259 
to  cross-bill  for  discovery,  22 
to  bill  for  injunction,  194,  205 
of  revivor,  407 


ANSWER— con<mi/«.f. 

formal,  filed  in  name  of  defendant, 

329 
contract  to,  5 

exception  for  insufficiency  of,  14 
further,  346 

motion  or  petition  on,  348 
See  Discovery. 
ANTICIPATION, 

clause  prohibiting,  43,  44 
language  to  impose  fetter  on,  45 
APPEAL 

generally,  388,  396-401 
in  lunacy,  290 
at  law,  300,  301 

in  equity,  on  facts  as  well  as  law, 
366,  377 
APPEARANCE 

entered  for  defendants,  326,  328 
at  hearing,  default  of,  374,  400 
APPLICATION 

of  purchase-money,  156 
APPOINTMENT, 

power  of,  abuse  of,  185 
under  power,  30 

as  to  election,  93,  94 
of  new  trustees  under  power,  38 

effect  of  bill   filed 

for,  39 
by  Court,  37,  39 
of  person  to  convey,  by  Court,  37 
judgment  defeated  by,  153 
See  Receiver. 
APPORTIONMENT, 
of  costs,  300,  392 
ARGUMENT, 

of  demurrer,  335 
of  plea,  339,  342 
ARBITRATION, 

discovery  in  aid  of,  18 
dispute  referred  to,  191,  192 
submission  to,  arbritation  of,  191, 
192 
made  rule  of  Court, 
192 
See  Submission. 
ARBITRATOR, 

proceedings  before,  18 
miscarriage  of,  191 
misconduct  of,  192 
grounds  of  judgment  of,  193 
ARRANGEMENT, 

by  consent,  reference  to  Master,  as 
to,  379 
ASSENT, 

of  executor  to  bequest,  250,  251 
ASSETS, 

legal,  defined,  252-254 
equitable,  defined,  254-257 


800 


INDEX. 


ASSETS — continued. 

getting  ill  of,  250,  251,  252 
of  partnership,    administration    of, 
240,  241 
interest  in,  241,  242 
testamentary,     administration     of, 

248-200 
answer  to  bill  of  revivor  as  to.  407 
ASSl'GNEES, 

in  banliruptcy,  142 

grants   void    against, 

145 
suit  defective  for  want 

of,  409 
plaintiff,  deatli  of,  410 
See  Bankrupt;  Bankruptcy ;  Chose 
in  Action. 
ASSIGNMENT, 

of  chose  in  action,  53,  54,80, 142,  148 

of  coj-yright,  215 

of  debt,  53,  54 

of  dower,  233,  234 

suits  for,  costs  of,  390 
of  lease,  3 
of  possible  and  contingent  interests, 

54 
of  right,  53,  54 
of  trust  or  confidence,  28,  53 
fraudulent,  151 
injunction  against,  144 

See    Conveyance;     Grant;    Term; 
Ehqit. 
ASSIGNOR, 

of  chose  in  action,  317 
ASSISTANCE, 

writ  of,  393,  394 
ASSUMPSIT, 

action  of,  224 
ATTACHMENT, 
writ  of,  324,  394 

with  proclamations,  324 

abolished, 
328,  393 
•  when  sequestration  substituted  for, 
320 
in  default  of  appearance,  328 

of  answer,  329 
for  non-performance  of  decree,  393 
non-bailable  for  costs,  394 
ATTAINDER, 

of  cestui  que  trust,  effect  of,  50 
of  trustee  or  mortgagee,  50 
ATTENDANCE, 

before  Master,  382,  383 
ATTENDANT.     See  Terms. 
ATTESTING, 

witness,  endence  of,  249,  250,  373 
ATTORNEY, 

communication  with,  6 


ATTORNEY— fo«</««c(/. 
taking  a  benefit,  184 
Sec  Solicitor. 
ATTORNEY-GENERAL, 
party  what  suits,  313,  314 
complaint  by,  301 
a  defendant,  311 
answer  by,  8 

protector  of  lunatics,  301 
costs  of,  390 
AUCTION, 

employing  persons  to  bid  at,  177 
AUCTIONEER, 

bill  of  interpleader  by,  204,  205 
AUDITOR 

in   action   of  account,  proceedings 
by,  224,  225 
AUTHENTICITY, 

of  document,  373 
AUTHOR, 
rights  of,  213 

statutes  protecting,  214 
AUTHORITIES, 

conferred  by  law.  99 
AVERAGE, 

general  doctrine  of,  270,  271 
AVERMENT, 
in  plea,  340,  341 
in  answer,  343 
in  bill  of  revivor,  407 
in  supplemental  bill,  414 
in   bill   in   nature   of  supplemental 
bill,  412 
AVOIDANCE, 

matter  of,  303,  330 
AWARD, 

how  enforced,  192 
may  be  impeached,  192 
how  invalidated,  193 
jurisdiction  to  set  aside,  191,  193 
application  to  set  aside,  193 
plea  of,  337 
BAIL,  360 

See  Equitable  Bail. 
BAILIFF, 

accounts  of,  225 
BANK, 

notes,  sheriff  to  seize,  131 
distringas  on,  as  to  stock,  357,  358 
restraining  order  on,  as  to  transfer 
or  dividend.  358 
BANKRUPT, 

mortgagor  becoming,  121 
plaintiff  becoming,  409 
uncertificated,  sued,  331 
assignees  of,  costs  of,  390,  391 
BANKRUPTCY, 
Court  of,  198 
fraudulently  issuing  fiat  of,  198 


INDEX. 


801 


BANKRUPTCY— con/i/iMed. 
fiat  in,  not  notice,  157 
conveyances  &c.  avoided  by,  145, 148 
assignees  in,  injunction  to  restrain, 

198 
petition  in,  349 
set-off  in,  223 
of  partner,  241,  246 
pendente  lite^409 
suit,  defective  by,  409 
BARGAIN, 

set  aside  in  equity,  186,  187 
BENEFICE, 

person  succeeding  to,  bill  against, 
410,  411 
BENEFIT, 

obtained  by  influence,  184 
See  Consideration ;   Trustees. 
BEQUEST.     See  Election ;  Charitable. 
BIBLE, 

right  to  printing  of,  214 
BILL, 

generally,  301-311 
statement  in,  302,  303 
charges  in,  302,  303 
interrogatories  in,  302 
prayer  of  relief,  302 

process,  302 
for  administration,  257 

of    assets,   evi- 
dence in,  362 
of  foreclosure,  113,  119 

*  or  sale,  120 

of  interpleader,  202-206 
of  peace,  199-201,  249 
in  cases  of  election,  95,  96 
for  discovery  in  aid  of  other  pro- 
ceedings, 20,  21,  22,  197 
•  for  establishing  modus,  236 
for  redemption,  dismissal  of,  120 
for  account,  writ  of  ne  exeat  regno 

on, 360 
for  specific  performance,  writ  of  ne 

exeat  regno  on,  360 
founded  on  the  solet,  238 
to  make  infant  ward  of  Court,  281 
to  perpetuate  testimony,  23-25 
to  revive,  406 

to  execute  a  decree,  415,  416 
to  impeach  decree,  415,  416 

for  fraud,  419,  420 
to  suspend  or  avoid  operation  of  de- 
cree, 416 
of  review  and  revivor,  418 

by  way  of  sup- 
plement, 418 
and  information,  73,  74,  76 
by  one  partner  against  another,  240, 
241 

51 


BILL — continued. 

by  surety  against  principal,  270 
by  one  of  a  class  on  behalf  of  him- 
self and  others,  320,  410 
when  afiidavit  to  be  annexed  to,  167 
proconfesso,  applicationto  take,  326 
taken  pro  confesso,  327,  329,  400 
and  answer,  cause  heard  on,  347 
dismissal  of,  373 

for  want  of  prosecution,  347 
right  to  file  new,  373 
order  to  retain,  with  liberty  to  pro- 
ceed at  law,  378 
imperfections  of,  402,  403 

See  Copy  of  Bill;  Cross-Bill ;  In- 
junction; Interpleader;   Original 
Bill;  Review;  Revivor;  Supple- 
ment. 
BILL  OF  EXCHANGE, 

sheriff  to  seize  and  sue  on,  131 
action  on,  168 

injunction  against  negotiating,  335 
See  Security. 
BONA  VACANTIA, 

trust  of  chattels  when,  51 
BOND, 

with  penalty,  108 

to  marry,  187 

of  committee  or  receiver,  294 

debt,  priority  of,  252 

may  be  tacked,  164 
correction  of,  172 
lost,  167 

profert  of,  at  law,  167 
parties  to,  parties  to  suit,  319 
BOOKS 

of  account,  discovery  as  to,  11 
protection  to,  214 
See  Copyright. 
BOROUGH  ENGLISH,  50 
BOUNDARIES, 

ascertainment  of,  237 
confusion  of,  237,  238 
bill  for  settling,  380 
BOUNTY, 

voluntary,  a  consideration,  97 
BREACH, 
of  trust,  liability  of  trustees  as  to 
59,  61,  62,  268 
option  of  cestui  que  trust 

in  case  of,  143 
cestui  que  trust,  consent- 
ing to,  62 
suit  as  to,  parties  to,  319 
cost  of  suit  as  to,  64 
affecting  charity  property 
Romilly's  acts  in  respect 
to,  75,  76 
to  discover  secret,  216 


802 


INDEX. 


BJiEACE—conlinued. 

of  professional  confidence,  3V0 

of  contract,  see  Specific  Performance. 
BUILDING, 

contract  for,  83 
BUSINESS, 

good  will  of,  80,  81 

damaging,  injunction  against,  216 
CANCELLATION,  175-193 
CAPIAS  AD  SATISFACIENDUM, 

■when  plaintiff  may  have,  133 
OAKGO.     See  Average. 
CASE, 

for  Court  of  law  directed,  375,  376 

printed,  on  appeal,  399 

of  the  Duties,  200 

of  the  Fisheries,  200 
CAUSE, 

set  down  for  hearing,  373 

set  down  on  further  directions,  387 

not  set  down  on  further  directions, 
385 

directed  to  stand  over,  372,  402 

order  to  advance,  401 

day  to  show,  see  Infant. 
See  Confirmation. 
CAVEAT, 

against  enrolment  of  decree,  307 

emptor,  maxim  of,  effect  of,  178 
CERTIFICATE, 

on  case  directed,  376 

of  counsel  for  rehearing  or  appeal, 
399 
CESTUI  QUE  TRUST, 

who  called,  26 

effect  of  death  of,  without  heirs,  50 
attainder  of,  50 

trustee  may  deal  with,  60,  184 

option  of,  in  case  of  breach  of  trust, 
143 

consent  of,  to  breach  of  trust,  62 

suit  by  parties  to,  318 

See  Conversion  ;  Reconversion. 
CHAMPERTY, 

discovery  as  to,  3 
CHANGE, 

of  property  subject  to  a  trust,  142 
See  Conversion. 
CHARGE,  • 

equitable,  by  deposit  of  deeds,  125 

lien  available  by  way  of,  127 

judgment,  under  1  &  2  Vict.  c.  110, 
130,  131 

creation  of,  on  partition,  231 

See  Contribution;  Discharge;  Ex- 
oneration;   Encumbrance;  Mar- 
shalling. 
CHARGES, 

in  bill,  302,  303 


CHARGES— conimttet?. 

and  expenses,  391 
CHARITABLE 

purposes,  trust  for,  65,  et  seq. 
Uses,  Statute  of,  66,  75 

trusts  of  real  estate  for,  68 
trust,  purchaser  with  notice  of,  69 
cy  pres  application  of,  69,  70, 

bequests,  no   marshalling  in  favor 
of,  276 
CHARITY, 

meaning  of  word,  65 
three  duties  of,  97 
gift  to,  70,  et  seq. 
relief  on  bill  as  to,  309 
Romilly's  act  as  to,  75 
suit,  costs  of,  391 

See  Statute  of  Limitations. 
CHATTELS, 

trust  as  to,  42,  51 
real,  of  wife,  43,  47 
lien  at  law  on,  127 
possession  of,  127 

See  Bona  Vacantia;  Specific. 
CHILD, 

purchase  in  name  of,  35,  101,  102 
unprovided  for,  equity  of,  101 
See  Advancement. 
CHILDREN, 

duty  of  maintaining,  97 
being  creditors,  105 
See  Relations. 
CHOSES  IN  ACTION, 
of  wife,  43,  47 
assignment  of,  53,  54,  80,  142,  148 

how  perfected,  161 
bill  of  interpleader  as  to,  204 
suit  as  to  parties  to,  317 
CHURCH 

rates,  debts,  or  charges  on,  appoint- 
ment of,  76 

See  Living ;  Presentation. 
CLAIMS, 

by  several  persons,  ground  for  bill 
of  interpleader,  202 
CLASS, 

suit  by  representative  of,  410 
See  Creditors;  Legatees. 
CLERGY, 
poor  act  for  augmenting  maint^n- 
ance  of,  286,  296 
CLIENT, 

communications  of,  with  advisers, 

discovery  as  to,  6 
attorney  taking  benefit  from,  184 
CLOUD, 

on  title,  jitrisdiction  of  equity  to  re- 
move, 202 


INDEX. 


803 


CO-DEFENDANTS, 

claims  between,  313,  402 
litigation  between,  402 
cross  relief  between,  402 
COLLATERAL  SECURITY, 

given  by  mortgagor,  119 
COLLEGES, 

trusts  imposed  on,  68,  69 
their  privileges  of  printing,  214 
COLLIERIES, 
jurisdiction  of  court  as  to,  247 
quasi  partnership  in,  247 
receiver  of,  354 
COLONIAL  COURT, 
proceedings  in,  198 
COMMISSION, 

in  suit  for  partition,  231,  380 
to  set  out  dower,  234,  380 
to  ascertain  boundaries,  237,  380 
to  examine  witnesses  abroad,  23-25 
de  lunatico  inquirendo,  292 
tinder  great  seal,  inquisitions  on, 
transcripts  of,  296 
COMMISSIONERS, 

to  make  partition,  231,  380 
to  examine  witnesses,  368 
for  regulation  of  charities,  75 
for  settling  boundaries,  380 
for  assignment  of  dower,  380 
in  lunacv,  now  masters,  294 
COMMITTEE, 
in  lunacy, 

appointment  of,  291 
powers  of,  295 
duties  of,  293,  294 
security  given  bj',  294 
allowance  for  maintenance  to, 

293 
remuneration  to,  293 
control  over,  298 
of  lunatic  or  idiot,  suit  by,  301 
COMMON  INJUNCTION,  195,358,359 
COMMUNICATION, 

privileged,  6 
COMPANY, 

injunction  against,  211 
bill  bv,  parties  to,  320,  321 
COMPENSATION, 
what,  must  be,  91 
condition  of  sales  as  to,  89,  90 
for  defects,  85,  89 

performance    with,    90, 
91 
in  cases  of  election,  96,  97 
for  non-performance  of  covenants, 
109 
COMPETENT  WITNESSES,  364 
COMPLETION.     See  Specific  Perform- 
ance. 


COMPOSITION, 

with  creditors,  179,  180 

real,  236 
COMPROMISE, 

made  under  mistake,  188 

of  administration  suit,  259 

reference  to  master  as  to,  379 
CONCEALED     OR     UNDISCLOSED 

INTEREST,  151 
CONCEALMENT, 

fraud  by,  178,  et  seq.,  197 

on  treaty  of  marriage,  180-182 
CONDITIONS  OF  SALE, 

as   to   misdescriptions   and   errors, 
89   90 
CONFEDERACY, 

charge  of,  306 
CONFIRMATION, 

of  master's  report,  385 
See  Report;  Return. 
CONFLICTING  CLAIMS, 

priority  between,  145 
CONFUSION 

of  boundaries,  237,  238 
CONSIDERATION. 

valuable,  necessity  for  specific  per- 
formance, 78,  92,  98 

benefit  conferred  as,  72,  92 

service  rendered  as,  79 

mistakenly  supposed  to  exist,  188 

conveyance  without,  146 

See   Fraud;    Imposition;   Merito- 
rious; Purchase. 
CONSIGNEE.     See  West  Indian  Mort- 
gage. 
CONSOLS, 

investments  in,  56,  57 
CONSPIRACY, 

indictment  at  law  for,  4 
CONSTRUCTION, 

of  instrument,  as  to  trusts,  30,  31 

by  extrinsic  evidence,  not  allowed, 
170 

as  to  legacy  or  gift,  103 

of  equity,  trustees  by,  62 
See  Interpretation. 
CONTEMPT, 

process  of,  324,  325,  393-395 

of  court,  as  to  marriage  of  ward,  288 

party  being  in,  326 
CONTINGENT  CHARGE,  91 
CONTINGENT  INTEREST, 

assignment  of,  54,  55 
CONTRACT, 

in  writing,  parol  waiver  of,  84 

misrepresentation  o£,  84 

in  fieri,  86 

implied,  213 

in  rem,  equity  under,  149,  159 


804 


INDEX. 


COJsTRACT— continued. 

purchaser  having  right  to  nullify,153 
promise  to  alter,  84 
secured  by  penalty,  107 
as  to  real  estate,  85 
to  convey,  122 

imperfect  or  uncompleted, 
123 
by  defendant,  to  answer,  5 
notice  of  prior,  152 
specific   performance  of,   equity  to 

compel,  11 
where   fulfilment  of,  impossible,  80 

81,  89 
conversion,  doctrine  of,  as  to,  140 
See  Specific  Performance. 

CONTRIBUTION, 
generally,  267-269 
between  partners,  241,  243 
persons   liable  to,  parties  to  suit, 
318    319 

CONVERSION, 
equitable,  135-145 
maxim  as  to,  135 
of  infant's  estate,  296,  297 
of  lunatic's  estate,  206,  297 
of  partnership  estate,  245 

CONVEYANCE, 

on  trust,  advantage  of,  27 
inconvenience  and  risk  of,  27 
to  new  trustee,  37,  38 
by  trustee  when  trust  at  an  end,  59 
by  incapacitated  trustee,  81,  349 
in  pursuance  of  executory  trust,  169 
by  substitution,  37,  39,  81,  116 
where  party  has  become  lunatic,  296 
fraudulent,  statutes  against,  145, 147 

153 
imperfect,  123 
unregistered,  153,  155 
with  compensation  for  defects,  85, 89 
by  bankrupt  or  insolvent,  145,  148 
•  by  donee  having  elected,  96 
by  tenant  in  tail,  99 
on  decree  of  partition,  232 
of  legal  estate,  protection  by,  159,160 
character  of,  evidence  of,  111 
takes  effect  from  date,  145 
master  to  settle,  379 

CONVICTION, 

of  felony,  forfeiture  by,  50,  51 

CO-OBLIGORS.     See  Bond. 

CO-OWNERS, 

parties  to  suits,  315 

COPARCENERS, 

partition  between,  229 

COPIES, 

in  master's  office,  persons  entitled 
to  take,  383 


CO-PLAINTIFFS, 
interests  of,  313 
COPY  OF  BILL, 

service  of,  311,  318 
COPYHOLDS, 

suit  to  compel  admittance  to,  65 
admittance  of  infants,  femes  covert, 

and  lunatics  to,  285,  295 
surrender  of,  equity  for  supplying, 

98,  99 
partition  of,  229,  230 
how  pass,  98- 
of  debtor,  131 
See  Court. 
COPYRIGHT,  213-219 
infringers  of,  200 
rights  of  crown  as  to,  214 
ex  parte  injunction  as  to,  355 
CORPORATION, 

eleemosynary,  jurisdiction  of  court 

as  to,  74 
property,  trusts  of,  67 
trust  imposed  on,  68,  69 
process  against,  326 
suit  against,  parties  to,  20,  314 
See  Municipal. 
CORRECTION, 

of  written  instrument,  168-173 
CORRUPTION, 

award  procured  by,  193 
COSTS, 

principle  as  to,  in  different  suits, 

389-391 
general  rules  as  to,  392 
apportionment  of.  389,  390,  392 
as  between  party  and  party,  when, 

391 
solicitor  and  client,  when,  391 
where  tender  or  terms  offered,  393 
when  out  of  estate  or  fund,  400,  401 
of  mortgagee.  111 
of  trustee,  61 

of  vendor  where  title  not  shown,  89 
to  pay  for  lunatic,  296 
of  answer  to  bill  for  discovery,  21, 
22,  392 
for  discovery  and 

relief,  21,  22 
cross-bill  for  dis- 
covery, 22 
of  administration  suit,  261 
of  suit  to  set  aside  bargain,  186, 187 
as  to  fraud,  176 
for  specific  performance,  80, 

81 
as  to  trust,  64,  65 
of  interpleader  suit,  206 
of  trying  a  traverse,  293 
on  demurrer,  334 


INDEX. 


805 


COSTS— continued. 

of  rehearing  of  bill  taken  pro  con- 

fesso,  400 
in  case  of  appeal,  400,  401 
of  rehearing  on  appeal,  400,  401 
of  the  cause,  time  for  deciding,  389 
decree  or  order  directing  payment 

of,  394 
rehearing  on  question  of,  400 
right  to  revive  as  to,  406,  407 
defendant's  answer  to  save,  21 
CO-TENANTS, 

partition  of,  229 
COUNSEL, 

communication  of,  with  client,  6,  1 

notice  to,  157 

signature  of,  to  pleadings,  301 

to  exceptions,  345,  386 
to  interrogatories,  368 
to  petition  of  rehearing 

or  appeal,  399. 
to  printed  case,  399 
certificate  of,  on  appeal,  399,  400 
COUNTY  PALATINE, 

suit  for  land  in,  331 
COURTS, 

of    equity,    proceedings    in,    com- 
plained of,  198 
of  equity,  inferior,  415 
of  law  and  equity,  contest  between, 

196,  197 
of  law,  case  for  opinion  of,  375,  376 
of  chancery,  officers  of,  198,  199 
proceedings  in,  discovery  in  aid  of, 

18,  19 
proceedings    in    other,    injunction 

against,  198 
manor,  proceedings  in,  correction 

of,  65 
See  Action;  Jurisdiction;  Suit. 
COURT  ROLLS, 
not  notice,  157 
COVENANT, 

in  lease,  non-performance  of,  109 
compensation  in  respect  of,  109 
covenantor  enjoined  from  infringing, 

207 
for  purchasing  land  on  trust,  137 
notice  of,  effect  of,  152 
debt  by,  priority  of,  252 
CREDIBILITY, 

of  witness,  impeachment  of,  365,371 
CREDITORS, 

remedy  of,  in  equity,  129,  132 

under  1  &  2  Vict.,  c.  110,  130,  131 
suit  by,  257,  258,  320 

some  on  behalf  of  all,  257, 

258,  320,  404,  410 
costs  of,  391 


CREDITORS.— conftnuerf. 

proceedings  by,  against  executor  or 

administrator,  250,  251 
puisne,  right  against  paramount  cre- 
ditor, 272 
of  lunatic,  297 
of  partnership,  rights  of,  244 
gifts  invalid  against,  147,  148 
grants,  <fec.,  void  against,  Yi5,  147 
restrained  from  proceeding,  259 
how  judgments  operate  against,  131 
advertisement  for,  262 
reference  to  master  as  to,  379 
agreeing  to  give  time,  107 
gift  or  legacy  to,  105 
not  bound  to  elect,  94 

See  Class;  Composition;  Elegit;  Ex- 
ecution; Marshalling ;  Principal; 
Sureties. 
CRIME, 

discovery  as  to,  from  defendant,  3, 
4,  343 
CROSS 

bill,  generally,  402,  403 
form  of,  403 

when  necessary,  17,  402,  403 
right  of  defendant  to  file,  2,  17, 

347,  402 
costs  of,  22 
demands,  right  of  set-off  of,  223 
examination  of  witness,  370,  371 
interrogatories,  370 
suit,  court  may  direct,  226 
CROWN, 
rights  of,  by  escheats  or  forfeiture, 

50,  51 
rights  of,  as  to  idiots  and  lunatics, 

290,  291 
jurisdiction  of,  as  to  eleemosynary 

corporations,  74 
appellate  jurisdiction  of,  in  equity, 

397 
prerogative  copyright  of,  214 
debts  due  to,  priority  of,  252 
conversion  in  favor  of,  139 
suit  on  behalf  of,  301 
suit  as  to  rights  of,  313,  314 
title  in,  traverse  of,  293 
charitable  fund,  when  at  disposal 

of,  67,  68,  73 
license  of.  for  quitting  kingdom,  560 
See  Alien ;  Attainder. 
CUMULATIVE.     See  Gift;  Legacy. 
CURATOR, 

of  estate  of  lunatic,  296 
CUSTODY, 

of  infants,  280,  281 

statute  as  to,  283,  284 
illegal,  of  infant,  281 


806 


INDEX. 


CVSTO'DY— continued. 
defendants  in,  321 
instrument  in  defendant's,  25 
See  Infant. 
CY  PRES,  67,  68 

application  of  trust  funds,  68,  69 
how  effected,  71 
in  what  cases,  73 
DAMAGES, 

arbitrary,  mere  matter  of,  91 

liquidated,  108 

stipulated,  5 

at  law,  remedy-  by,  83,  86,  87,  221 

in  injunction  suit,  219 

to  vessel  or  cargo,  206,  207 

See     Compensation;      Destructive; 
Trespass ;   Penalty. 
DEATH, 

causing  defect  in  suit.  410 
abatement,  403,  405,  406 
of  assignee  of  bankrupt  or  insolvent 
plaintiffs,  410 
debtor,  130,  148,  173 
heir  pendente  lite,  234 
husband,  404,  405 
idiot,  or  lunatic,  298 
mortgagor,  120 
partner,  241,  246 
plaintiff  ininterpleadersuit,  206 
vendor  or  vendee,  140 
DE  BENE  ESSE.     See  Examination. 
DEBTOR,. 

land  of,  made  assets,  253,  254 
stock  of  shares  belonging  to,  133 
entitled  to  trust  or  equity,  129 
taken  in  execution,  133,  134 
death  of,  130,  148,  173 
See  Elegit;  Execution. 
DEBTS, 

conveyance  for  payment  of,  31 
devise  for  payment  of,  94,  253,  254 
trust  for  payment  of,  156,  255 
payment  of,  provisions  for,  43 
statutes  making  real  estate  liable 

to,  253,  254,  275,  276 
suit  as  to,  parties  to,  317 
priority  of,  order  of,  252 
charged  on  several  kinds  of  assets, 

274 
account  of,  261 
assignment  of,  53,  54 
incurred  by  married  woman,  45,  46 
gift  or  legacy,  in  discharge  of,  105 
of  lunatic,  296,  297 
of  mortgagor,  payment  of,  120 
executor's  right  to  retain,  223 
notice  to  purchaser  of,  156,  157 
tacking  of,  under  stat.  3  &  4  Wm.  4, 
c.  104,  164 


DEBTS— cowiwMfiJ. 
joint  and  several,  172 
owing  by  a  partnership,  173 

See     Bond    Debt ;      Composition  , 
Principal;  Set-off;  Simple  Con- 
tract Debt;  Sureties. 
DECEIT, 

intentional,  150 
DECLARATION, 
of  trust,  27,  et  seq. 

omission  of,  32 

how  interpreted,  40 
that  fund  may  be  identified,  56 
character  of  trustee  assumed  by,  80 
of  intention,  evidence  of,  102 
as  to  breach  of  trust,  evidence  of,  143 
DECREE, 

generally,  374-395 

in  suit  for  account,  226 

for  account,  in  suit  to  revive,  407 

on  bill  for  administration,  258,  259, 

362 
in  suit  for  foreclosure,  119 

to  set  aside  bargain,  186,  187 

for  cancellation,  191 

for  partition,  223 

for  specific  performance,  362 

by  one  on  behalf  of  himself  and 
others,  320,  321 
in  creditor's  suit,  257,  258 
in  legatee's  suit,  258 
in  interpleader  suit,  205,  206 
in  original  suit,  use  of  in  supple- 
mental, 411 
in  supplemental  suit,  415 
for  charging  property,  130 
of  injunction,  194 
for  dissolution  of  partnership,  242, 

243 
for  delivering  up  an  estate,  393 
for  payment  of  money,  393 
original,  387, .388 
on  further  directions,  387 
in  administration  suit,  262 
minutes  of,  396 
passed  and  entered,  396 
signed  and  enrolled,  417 
when  in  fieri,  396 
conclusive,  396,  397 
service  of  copy  of,  394 
error  in,  396,  397 
compelling   obedience  to,  326-393, 

395 
unjust,  enforcement  refused,  416 
obtained  by  fraud,  419 
by  consent  fraudulently   obtained, 

42.0 
improper  against  infant,  420 
alteration  or  reversal  of,  396,  417 


INDEX. 


807 


DECREE— continued. 

bill   to   execute    or   impeach,   415, 

416 
bill  to  suspend  or  avoid  operation 

of,  416 
reversal  of,  bill  for,  416,  41'? 
proceedings  under,  stay  of,  401 
impeached,  bill  of  review  shall  not 

prevent  execution  of,  417,  418 
having  effect  of  judgment,  130,  131 
debts  by,  priority  of,  252 
when  some  parties  out  of  jurisdic- 
tion, 322,  323 
on  argument  of  plea,  342 
saving  rights  of  absent  parties,  343 
evidence,  foundation  for,  362,  363 
evidence  entered  in,  as  read,  399 
trustees  constituted  by,  62 
by  consent,  excludes  appeal,  400 
on  default,  rehearing  or  appeal  as 

to,  400 
matter  discovered  after,  415,  417 
by  inferior  court  of  equity,  414 
interlocutory,  notice  by,  157 
final,  or  judgment,  not  notice,  157 
mention  of,  in  master's  report,  384, 
385 

See  Order;  Priorities. 
DEED, 

execution  of  power  by,  100 
under  duress,  182 
mortgage  by  deposit  of,  123 
depositee  of,  125 
to  be  registered,  153 
registration  of,  not  notice,  157 
master  to  settle,  379 
resulting  trust  by,  32 
of  separation,  44 

See  Search  ;   Title  Deeds ;   Trust. 
DEFACEMExN'T, 

suit  to  prevent,  92 
DEFAULT, 

decree  by,  374,  400 
DEFEASIBLE, 

interest  being,  152,  153 
DEFECTS, 

substantial,  90 

compensation  for,  85,  89,  90,  91 
in  defendant's  title,  15,  16 
in  title,  waiver  of,  87 
in  execution  of  gift,  100 
in  suit,  how  cured,  408,  et  seq. 
fraud  as  to,  178,  179 
DEFENCE, 

statement  and  charge  to  meet,  303, 

304 
to  a  suit,  331-348 
DEFENDANT, 
at  law  and  in  equity,  1,  2 


DEFENDANT— con<mMerf. 

absconding  process  against,  327 

privileged,  process  against,  327 

competent  or  incompetent,  8 

discovery  by  one,  effect  of,  20 

protection  of,  from  discovery,  2,  3, 
4,  343 

conflicting  claims  of,  313 

right  of,  to  set  off,  222,  223 

in  custody  under  process,  327 

to  answer  contempt,  329 

third  answer  of,  insufficient,  346 

litigation  between,  462 

female,  marriage  of,  403,  404 

infantcoming  of  age,  discovery  from, 
414 
See  Answer ;  Discovert/;  Insuffi- 
ciency. 
DELAY,  V 

by  accident  or  misfortune,  89 

court  may  rectify,  88 
DELIVERY, 

effect  of,  53 

of  deeds  by  way  of  security,  124 

of  chattel,  127 

of  instrument,  167 
DEMURRER,  233-236 

protection  from  discovery  by,  3,  5,  6 
DEPOSIT, 

of  title  deeds,  123 

on  sale,  128 

of  lease,  141 

bill  of  interpleader  as  to,  204,  205 
DEPOSITIONS, 

of  witnesses,  366-368 

in  cause,  use  of,  before  master,  383 

in  original  suit,  use  of,  in  supple- 
mental, 411 

in  supplemental  suit,  413 

motion  for  leave  to  read,  413 
to  suppress,  370 

used  against  alienee  pendente  lite, 
409 
DESIGNS, 

registered,  protection  to,  214 
DESTRUCTION, 

of  instrument,  25,  166 

suit  to  prevent,  92 
DESTRUCTIVE  TRESPASS,  209,  210 
DETAINER, 

of  chattel,  127 

of  title-deeds,  rights  of,  124,  127 
DETINUE, 

action  of,  91 
DEVICE, 

right  to  use,  217 

imitation  of,  217 
DEVISAVIT  VEL  NON, 

issue,  when  directed,  249 


808 


INDEX. 


DEVISE, 

of  trust  estate  by  trustee,  57 
ineffectual,  as  to  election,  92,  93,  94 
for  payment  of  debts,  94,  253 
fraudulent  and  void,  statutes  as  to, 

253 
specific,  265 
residuary,  265 
DEVISEES, 

of  mortgage,  in  respect  to  recon- 
veyance, 116 
of  vendee,  140 
of  vendor,  141 
title  of,  249 

how  far  trustees  for  creditors,  251 
and   heirs,   contributions,   &c.,  be- 
tween, 274 

See  Representatives. 
DIRECTORS, 

of  company,  suit  against,  322 
DISABILITY, 
to  sue,  331 
plea  of,  336 
DISCHARGE, 

by  matter  in  pais  of  contracts  under 

seal,  106-109 
trustee's  receipt,  156 
of  encumbrances,  contributions  to, 

270 
of  one  of  several  coparceners,  270 
by  one  of  parties  liable,  270 
of  an  order,  397 
DISCLAIMER, 

generally,  332,  333 
deed  of,  37 
DISCOVERY, 
generally,  1-22 
bill  for,  prayer  of,  311 

parties  to,  314 
supplemental  bill  for,  413 
in  suit  for  account,  225 

stated   account,   bar   to, 
226 
suits  for,  costs  of,  389 
bill  for,  demurrer  to,  334 
plea  to  all  relief,  bar  to,  338,  339 
by  answer,  343 

required  in  cross  suits  by  defend- 
ants, 402 
from   defendant  on  his  coming  of 

age,  414 
mere  want  of,  not  ground  for  relief, 

221 
subsequent  ground  for  injunction, 
197 

See  Account;  Copyright ;  Docu- 
ments ;  Patent. 
DISMISSAL 

of  bill  for  administration,  259 


DISMISSAL — continued. 

if  plaintiff  omit  to  file  replication, 

347 
for  want  of  prosecution,  373 
on  default  of  plaintiff,  373 
if  plaintiff  neglect  to  revive,  406, 

407 
when  plaintiff  bankrupt,  409 
See  Bill. 
DISSEISIN 

of  trustee,  37 
DISSOLUTION 

of  partnership  by  death   or  bank- 
ruptcy, 246 
of  partnership,  suit  for,  240,  322 
what  will  cause  or  warrant,    241, 
242 
DISTRIBUTION 
of  assets,  261 
bill  for,  262 
among  creditors,  250 

partners,  241,  245 
See  Statute  of  Distributions. 
DISTRINGAS, 
process  by,  326 
as  to  stock,  357 
DIVIDENDS. 

on  stock  of  infant,  286 
lunatic,  296 
See  Distringas ;  Restraining  Order; 
Stock. 
DOCKET 

of  judgments,  155 
system  abolished,  155 
See  Judgment. 
DOCUMENTS, 

discovery  as  to,  12,  13 
title  to  possess,  13 
possession  of,  by  plaintiff,  12,  17,  18 
by  defendant,  14,  15 
charge  as  to,  305 
suit  for,  13 
bill  to  impeach,  16 
production  of,  motion  for,  13 
deposit  of,  on  order  to  produce,  350 
liberty  to  inspect  and  take  copies 

of,  350 
uncertainly  described,  14 
schedule  containing  list  of,  344 
in  custody  of  public  ofiicer,  proof 

of,  372 
proof  of,  by  affidavit,  373 
delivery  of,  contempt  as  to,  394 
seizure  and  disposal  of,  by  seques- 
trators, 395 

See  Inspection;  Production. 
DONEE, 

of  power,  contract  by,  99 
quasi  owner,  99 


INDEX. 


809 


DOWER, 

at  common  law,  what,  51 
as  to  equitable  estates,  51,  152,  153 
assignment  of,  233,  234 
notice  of,  effect  of,  152,  153 
DOWER  ACT,  51,  94,  153,  235 
DRAMATIC  COMPOSITIONS, 

protection  of,  214 
DURANTE  MINORE  ^TATE, 

administration,  410 
DURESS, 

contracts  by  persons  under,  182 
See  Fraud. 
DUTY, 

moral,  performance  of,  a  considera- 
tion, 97,  101 
assets,  252 
bail,  writ  of  ne  exeat  operates  in 

nature  of,  3G0 
charge,  125 
conversion, 135-145,  245 

See  Conversion. 
debt,  ground  for  writ  of  ne  exeat, 

360 
fieri  facias  and  elegit,  122,  129,  134 
fraud,  186 

impediments  to  trial  at  law,  378 
interest,  debtor  having,  129 

assignment  of,  53 
lien,  122,  126-129 
mortgage,  122,  123-125 
right,  not  perfect  in  any  of  claimants, 

162 
set-off,  223 
waste,  208 
ECCLESIASTICAL  COURT, 

proceedings  in,  18,  19,  198,  235,  250 
as  to  will,  248 
See  Court. 
EDUCATION 

of  ward,  scheme  for,  282 
EJECTMENT, 

action  of,  nature  of,  202 
for  tithes,  235 
injunction  to  restrain,  194,  202,  249 
ELECTION, 

generally,  92,  96 
equity  of,  92,  93 
by  alien,  138 
by  purchaser,  352 
for  infant,  284 
between  two  benefits,  105 
between  action  and  suit,  336 
ELEGIT, 

equitable,  122,  129-134,  164 
extended  bv  statutes  1  &  2  Vict.  c. 
110,  and' 2  &  3  Vict.    c.   11,  131, 
159 
estate  by  assignment  of,  159 


ENCUMBRANCE, 

inquiry  of  vendor  as  to,  effect  of, 

150 
contribution  to  discharge,  270 
on  estate  of  lunatic,  296 
ENCUMBRANCER, 
prior,  122 
mesne,  163 

rights  of,  as  to  receiver,  353 
power  of,  to  tack,  163-165 
getting  in  term,  52 
acquiring  conflicting  rights,  53 
ENFORCEMENT 

of  decree,  415,  416 
ENGRAVINGS, 

protection  to,  214 
ENLARGING  PUBLICATION,  380 
ENROLMENT 

of  decree,  374,  396,  397 

caveat  against,  397 
vacated,  397 
ENTAIL, 

of  trust  estate,  50 
executory  trust  as  to,  41,  42 
EQUITY, 

to  have  accounts  taken  in  chancery, 

see  Account. 
for  account  in  injunction  suit,  219 

bar  to,  227 
for  administering  assets  of  testator 

or  intestate,  248,  250 
for  assignment  of  dower,  233,  234 
for  resorting  to  chancery  in  cases  of 

set-off,  222,  223 
for  partition,  229 
for  sale  of  partnership  estate,  244, 

245 
for  specific  performance,  285 
for  winding-up  partnerspip,  239 
of  interpleader,  essentials  to,  203 
of  injunction  against  tort,  207 
injunctive,  incidents  of,  217-219 
to  have  legal  impediments  removed, 

249 
of  contribution,  266,  267 
of  exoneration,  266,  269 
of  marshalling,  266,  271 
of  election,  92,  et  seq. 
of  wife  to  a  settlement,  48,  288,  289 
to  file  cross-bill,  402,  403 
to  revive,  406 
in  nature  of  tacking,  165 
based  on  disputed  legal  right,  378 
being  equal,  law  prevails,  148,  159 
when  equal,  148 
confessed,  196,  359 
reserved,  359 

decree  on,  375 
subordinate,  85 


810 


INDEX. 


EQUITY.— continued. 

subordinate,  affidavit  as  to,  206 

notice  of  effect  of,  151 

want  of,  331 

demurrer  for,  333 
plea  of,  336 
See  Tacking. 
EQUITY  OF  REDEMPTION, 

on  mortgage,  110,  111 

of  mortgagor,  113 

incidents  of,  113,  ef  seq. 

title  to,  how  perfected  in  equity,  160 

mortgage  of,  122,  123 

assets,  255,  256 

aliened,  not  assets,  165 

of  wife's  estate,  173 
ERROR, 

at  law,  300,  301 

in  decree  or  order,  396,  397,  416,  419 

in  stated  account,  226 

as  to  instruments,  166 

on  both  sides,  171 

condition  of  sale  as  to,  89,  90 

improvements  made  in,  150 
ESCHEAT, 

generally,  263,  264 

what  is,"50,  113 

of  mortgagee's  estate,  115 

of  mortgagor's  estate,  113,  114 

as  to  trust,  37,  50 
ESSENCE  OF  CONTRACT.  See  Time. 
ESTATE, 

legal   and    equitable,    analogy   be- 
tween, 50 

equitable  as  to  dower,  51 

See  Dower;  Legal  Estate;  Personal 
Estate;  Possession ;  Real  Estate; 
Trust. 
EVIDENCE, 

generally,  362-373 

of  breach  of  trust,  143 

of  fraudulent  conveyance,  147 

of  fraud,  not  fraud,  158 

of  mistake  or  error,  171,  172 

in  cases  of  election,  95 

production  of  document  being,  15, 17 

as  to  presumption  of  trust,  34,  35 

on  purchase  in  name  of  another,  102 

of  intention  as  to  gifts  or  legacies, 
103,  104 

extrinsic,  of  intention,  103,  104,  105, 
106 

presumptive,  correction  on,  172,  173 

conflicting  or  insufficient,  376 

going  into,  without  answer,  329 

notice  of,  in  bill,  304 

as  to  plea,  341 

defects  or  failures   in  reference  to 
master  to  supply,  379,  382 


EVIDENCE— con/i«McJ. 

alreadv  used,  use  of,  before  master, 

383' 
additional,  in  master's  office,  383 
mention  of,  in  master's  report,  384 
entered  as  read,  399 
on  rehearing  and  appeal,  distinction 

as  to,  399 
rejection  of,  ground  of  appeal,  399 
new,  of  original  equity,  413 

after  publication  passed,  413 
appendix  of,  to  case,  on  appeal,  399 
See  Extrinsic;  Parol. 
EXAMINATION, 
de  bene  esse,  23-25 

bill  for,  167 
of  witness  at  law,  363,  364,  365,  366 
in  equity,  366-368 
before  master,  383 
method  of,  on  reference  to  the  mas- 
ter, 382 
of  defendant,  when  third  answer  in- 
sufficient, 345 
of  party  to  suit  as  witness,  363,  364 
after  publication,  371,  372 
See  Evidence. 
EXAMINER,  368 

documents  produced  before,  350 
EXCEPTION 

to  answer  for  insufficiency,  14,  345, 

346 
to  master's  report,  345,  384,  386 
EX  DELICTO, 
liability,  268 
EXECUTED 

trust,  what,  40 
EXECUTION, 
at  law,  300 

writ  of,  under  1  &  2  Vict.,  c.  110,  129 
taking  debtors  person  in,  133,  134 
property  exempt  from,  130 
plaintiff  restrained  from  issuing,  196 
against  partner,  241 

See  Fieri  Facias ;  Elegit. 
of  deed,  proof  of,  373 
of  instrument,  decree  for,  394,  395 
by  master,  instead  of 
party  in  contempt, 
395 
See  Re-execution. 
of  decree,  bill  for,  415,  416 

bill  of  review  shall  not 
prevent,  417 
EXECUTORS, 
powers  of,  251 

discovery  by,  as  to  accounts,  11 
action  of  account  by  or  against,  225 
set-off  in  suit  by  or  against.  222 
of  executors,  account  by,  225 


INDEX, 


811 


EXECUTORS— cow^i«««rf. 

of  trustee,  57 

of  vendee.  141 

receipt  by,  58 

sale  by,  of  leaseholds,  156 

acquiring  benefit,  59,  60 

balance  in  hands  of,  258,  259 

how  far  trustees,  251 

parties  to  suit  against  heir,  319 

entitled  to  retain  debt  out  of  legacy, 
223 

debtors  to  their  testator,  351,  352 
See  Representativet. 
EXECUTORY 

trust,  what,  40,  41,  42 

gift,  42 
EXONERATION, 

generally,  269-271 

intention  of.  263,  264 
EX  PARTE 

injunction,  205,  355 
EXTINCTION 

of  ^rust,  32 
EXTRINSIC  EVIDENCE, 

of  intention,  103,  104,  106,  169,  170 
See  Evidence. 
FACTS, 

mistake  as  to,  188,  192 

uncertainty  as  to,  188 

known,  law  mistaken,  189 

conclusion  of,  answer  to,  344 
See  Issue;  3f aster. 
FAILURE 

of  trusts,  33,  69 
FALSE  REPRESENTATION,  150 

See  Misled. 
FATHER, 

of  ability  to  maintain  child,  287 

right  of  guardianship  of,  278 

misconduct  of,  2a3 

dead,  non-compos,  or  beyond  seas, 
289 
FELLOWSHIP, 

trust  for  founding,  71,  72 
FELONY, 

composition  of,  3 

infant  convicted  of,  284 

cestui  que  trust  attainted  of,  50 
FEME  COVERT, 

suit  by,  301,  331 

suit  against  parties  to,  313 

power  of,  over  separate  property,  45 

equity  for  settlement  of,  43,  47,  48, 
49,  288,  289 

waiver  of,  48,  49,  389 

interest  of,  how  fettered,  44 

alimony  of,  46 

right  of  survivorship  of,  47 

appointment  testamentary  by,  93 


FEME  COVERT— continued. 
election  bj-,  96 

examination  of,  by  court,  48,  289 
statutes  relating  to  property  of,  285 
separate  use  and  pin-money  trusts 

for,  43,  46 
share   of,   carried   to   separate   ac- 
count. 388,  389 
FEOFFMENT 

of  insane  person,  182 
FERRY 

obstructions  of,  200 
FIERI  FACIAS, 

equitable,  122,  129-134 
extension  by  statutes,  1  &  2  Vict.  c. 
110,  and  2  Vict.  c.  11,  131,  395 
FINAL  DECREE,  375,  378 
FINDING 

of  master,  statement  of,  in  report, 
384 
FINES, 

legal  title  destroyed  by,  153 
contribution  to  discharge,  270 
FIXTURES.     See  Waste. 
FORECLOSURE, 
suits  for,  112,  119 

parties  to,  317 
costs  of,  391 
of  Welsh  mortgage,  125 
of  mortgage  by  deposit,  125 

by  trust  deed,  125 
in  case  of  lien,  128 

See  Judgment;  Recognitanee ;  Sta- 
tute. 
FOREIGN 

court,  proceedings  in,  19,  198 
sovereign,  party  to  suit,  2,  313 
FORFEITURE, 

discovery  as  to,  2,  3,  5,  343 

of  mortgage,  112 

of  trust  estates,  50 

in  cases  of  election,  96,  97 

of  tithes,  235 
under  Marriage  Act,  289 
witness  not  bound  to  incur,  370 
FRAUD, 

what  constitutes,  176 
in  equity,  144 
discovery  as  to,  4 
jurisdiction  in  cases  of,  175,  176 
suit  as  to,  parties  to,  317,  319 
by  drawer  of  will,  248 
in  obtaining  will,  175,  248 
probate,  248 
decree,  419,  420 
enrolment   of   decree  vacated    on, 

397 
original  bill  to  impeach  decree,  on 
ground  of,  416 


812 


INDEX. 


FRAUD — continued. 

gross  inadequacy  of  consideration, 
79 

refusal  to  complete  contract,  86 

as  to  instrument,  166 

stated   account   opened  on  ground 
of,  226 

contract  rescinded  on  ground  of,  144 

innocent  party  profiting  by,  176 

priority  of  equity,  on  ground  of,  176 

to  vitiate  award,  192 

warranting  injunction,  197 

precluding  copyright,  215 

to  discover  secret,  216 

set-off  in  cases  of,  223 

alleged  in  bill,  reason  against  de- 
murring, 336 

by  solicitor,  notice  of,  151 

concealment,  evidence  of,  151 

evidence  of,  not  fraud,  158 

costs  in  cases  of,  392 

See     Bankruptcy ;      Cancellation  ; 
Fraudulent  Conveyances ;  Misled; 
Rescission  ;  Statute  of  Frauds. 
FRAUDULENT 

conveyances,  statutes*  against,  145, 
147 

removal  of  goods,  238 

dealing  of  partner,  243 
FREIGHT.     See  Shipowner;  Average. 
FRIEND, 

advantage  taken  by,  185 
FRIENDLY  SOCIETIES, 

jurisdiction  over,  76 
FURTHER  DIRECTIONS 

in  administration  suit,  262 

reserved,  387 

cause  set  down  on,  387 

when  cause  not  set  down  for,  385 

cause  heard  on,  387,  389 

decree  on,  375,  387 
GAMING, 

discovery  as  to,  6 
GAVELKIND,  50 
GENERAL  OBJECTS, 

trust  for,  65 
GIFT, 

instrument  of,  79,  80 

on   meritorious   consideration,   98, 
99,  100  . 

promise   inter   vivos   followed    by, 
104,  105 

as  substituted  portion,  101 

cumulative,  101 

successive,  103 
See  Consideration. 
GOODS, 

sale  of,  83 

account  of,  224 


GOODWILL 

of  business,  81 

of  partnership,  246 
GRAMMAR  SCHOOLS, 

jurisdiction  by  statute  as  to,  76 
GRANDCHILD, 

equity  of,  101 
GRANT 

of  trust  or  confidence,  28 

fraudulent,  145 

voluntary,  146 
GUARANTEE, 

contract  to,  106 

stipulation  in,  107 

by  specialty,  106,  107 

by  simple  contract,  107 

discharge  of,  106,  107 

restraint  from  suing  at  law  upon, 
107 
GUARDIAN, 

appointment  of,  281,  349 

in  socage,  279 

account  of,  225        . 

authorized  by  court,  act  of,  143 

legal  misconduct  of,  283 

under  Marriage  Act,  289 

of  personal  estate  of  lunatic,  292 

consent  of,  to  marriage,  289 

property  unduly  changed   by,   142, 
143 

benefit  to,  from  ward,  184 

Master  to  appoint,  380 
GUARDIANSHIP, 

kinds  of,  279,  280 

by  statute,  280 

right  of,  278-280 
HABEAS  CORPUS, 

jurisdiction  under,  280 
HANDWRITING, 

proof  of,  373 
HARDSHIP, 

specific  performance,  being,  85 
HEARING, 

generally,  374-395 

of  cause,  documents  produced  at, 
350 

of  exceptions,  387 

as  to  assets,  in  suit  to  revive,  407 

on  supplemental  matter,  415 
See  Cause;  Further  Directions. 
HEIR, 

equity  of,  100,  101 

right  of,  to  an  issue  devisavit  vel 
non,  249,  377 

expectant,  bargain  with,  186,  191 

presumptive,  of  lunatic,  294,  295 

of  mortgagee  in  respect  of  recon- 
veyance, 116 

of  trustee,  37,  38 


INDEX. 


813 


HEIR — continued. 
of  vendee,  140 
of  vendor,  141 

in  case  of  failure  of  devise,  33,  138 
coarse  of,  to  set  aside  will,  249    . 
when  put  to  his  election,  93,  94 
resulting  trust  for,  139,  140 
bow  far  trustee  for  creditors,  251 
will  establish  agents,  249 
suit  against  parties  to,  319 
cost  of,  in  suit  to  establish  will,  390 
allegation  of  plaintiff  being,  337, 

338 
and  devisee,  contribution  between, 
274 

See  Infant;   Trtuteet. 
HEIRSHIP, 

plea  denying,  337 
HEREDITAMENTS, 

contract  or  sale  of,  85 
HOUSE  OF  LORDS. 

appellate  jurisdiction  of,  in  equity, 
397-399 
HUSBAND, 

rights  of,  as  to  estate  of  wife,  289 
against  will  of  wife,  93 
in  case  of  election,  96 
restrictions  of,  43,  47,  49 
assignment  by,  of  wife's  chose  in 

action,  142 
of  female  party  to  suit,  403,  404 
and  wife,  bill  by  or  against,  403, 404, 
'405 
mortgage  by,  173 
admissions  by,  363 
See  Feme  Covert. 
IDIOT, 

who  considered,  290 
conveyance  and  contract  of,  182 
suit  by,  301 

suit  against,  parties  to,  313 
IGNORANCE 
of  law,  190,  191 
rescinding  transaction,  188 
as  to  instrument,  166 
forfeiture  incurred  by,  109 
ILLEGAL  TRUSTS,  32,  33 
ILLEGALITY 

as  to  instrument,  166 
ILLUSORY  APPOINTMENT,  185, 186 
IMBECILITY, 

consequence  of,  183 
IMMORALITY, 

precluding  copvright,  316 
IMPERFECTION' 

of  bill,  402,  et  seq. 
IMPERTINENCE, 

in  allegations  in  bill,  306 
in  answer,  343 


IMPERTINENCE— €onftn««rf. 

Master  to  judge  of,  380 
See  Prolixity;  Scandal. 
IMPEACH 

decree,  bill  to,  415 
See  Account;  Decree. 
IMPOSITION 

inadequacy  of  consideration,  ^9 
IMPRISONMENT, 

deed  executed  during,  182 

decree  enforced  by,  395 
IMPROVEMENTS 

made  in  error,  150 
INCAPACITY 

to  contract,  182-185 

persons  under,  property  belonging 
to,  285,  290 
See  Fraud. 
INDEMNITY, 

offer  to  give,  what  is,  91 

against  risk,  91 

in  case  of  loss,  168 

bond  of,  172 

right  of  surety  to,  269 
INFANCY 

generally,  278-289 

as  to  election,  96 

of  defrauding  party,  176 

of  parties  in  suit  for  partition,  232 
INFANT, 

suit  by,  301,  331 

for  specific  performance,  82 

relief  on  bill  for,  309 

reference  to  master  as  to  proposal 
for  benefit  of,  379  ^ 

statutes  relating  to  property  of,  285 
custody  of,  283, 
284 

estate  of,  receiver  appointed,  353 

property  of,  unduly  charged,  142, 
143 

day  for,  to  show  cause,  232 

trustee  being,  37,  38 

heir  of  mortgagee  being,  116 

mortgagor,  sale  directed,  120,  121 

admissions  by,  363 

defendant,  answer  by,  8 

coming  of  age,  discovery 
from,  414 

decree  against,  416 

improper  decree  made  against,  420 
See  Custody ;  Infant. 
INFLUENCE, 

benefit  obtained  by,  184 
INFORMATION 

and  bill  as  to  charitable  trusts,  73,  74 

and  bill,  301,  302 
INFRINGEMENT 

of  patent,  212,  213 


814 


INDEX. 


INFRINGEMENT— con/i«wfrf. 
of  copyright,  214,  et  seq. 

remedy   at    law    for, 

215,'216 
in  equity,  216 
INHERITANCE, 

term  attendant  upon,  51,  52 
INJUNCTION, 

common,  195,  358,  359 

special,  195,  198 

ex  parte,  205,  355,  356 

mandatory,  what,  218 

at  suit  of  creditor,  129 

against  sale  or  assignment,  144 

proceedingsatlaw,  194-198, 

249,  311 
proceedings  in  ecclesiasti- 
cal and  other  courts,  197, 
198 
tort,  207-219,  247 
trespass  as  to  mine  or  col- 
liery, 247 
ejectment,  249 
on  bill  of  interpleader,  205 
by  shipowners,  207 
to  stay  separate  proceedings  in  ad- 
ministration suit,  259,  260 
continued,  196 
made  perpetual,  196 
ordfer  of,  349,  355-359 
operation  of,  194 
after  judgment,  196 
motion  to    dissolve,  196,  205,  206, 
356,  359 

See  Dissolution. 
INJURIOUS  ACTS, 

contract  to  refrain  from,  83 
IN  LOCO  PARENTIS, 

person,  35,  98,  101 
INNOCENCE 

of  party  profiting  by  fraud,  176 
INQUIRY 
directed,  367 

on  interpleader,  206 
as  to  wilful   default  of  trustee  or 

agent,  221 
as  to  profits  of  partnership,  246 
in  lunacy,  294 
on   bill   for    specific    performance, 

362 
to  verify  statement,  177 
effect   of,   as   to    notice,    157,    158, 

161 
suggestion  in  answer  of  matter  for, 

21 
preliminary,  380,  381 
INQUISITION 

de  lunatico  inquirendo,  291,  292 
transcripts  of,  296 


INSOLVENCY, 

conveyances,  Ac,  avoided  by,  145, 

148 
making  suit  defective,  409 
pendente  lite,  409 
INSOLVENT, 

when  party  to  suit,  319 
assignees  of,  costs  of,  390,  391 
INSPECTION  OF  DOCUMENTS, 
plaintiflTs  right  to,  13 
before  hearing,  16 
in  possession  of  plaintiflF,  17,  18 
See   Production. 
INSTRUMENT, 

execution  of,  contempt  in  regard  to, 

394 
delivery  of,  167 

construction  of,  as  to  trusts,  30,  31 
written,  extrinsic   evidence   as   to, 

103,  104,  105,  106 
in  pursuance  of  agreement,  169 
destroyed,  lost,   or   in    defendant's 

custody,  25 
See  Cancellation;  Concealment ;  Cor- 
rection ;    Destruction ;    Execution ; 
Loss ;  Missing ;  Negotiable ;  Re-ex- 
ecution ;   Rescission ;   Security. 
INSUFFICIENCY 
of  answer,  345 
exceptions  for,  345 
Master  to  judge  of,  380 
INSURANCE, 
covenant  for,  109 
contribution  in  cases  of,  269 
fraud  as  to,  179 
INTENTION 

of  donor  of  power,  100 
See  Extriusie  Evidence. 
INTEREST 

on  moneys  retained  by  trustees,  63 

used  by  trustees,  64 
compound,    when    trustee   charged 

with,  64 
on  purchase-money,  88-140 
on  legacy,  101,  102,  103 
on  mortgage,  increase  or  reduction 
of,  108,  109,  112 
payment    of,    within 
twenty  years,  118 
in  account  of  mortgagee,  118 

See  Stock. 
in  or  concerning  lands,  tenements, 

or  hereditaments,  85 
concealed  or  undisclosed,  151         , 
limited,  owner  of,  89,  90,  91 
defeasible  and  indefeasible,  152, 153 
cessation  of,  5 
of  parties  to  suit,  314 

rise  of,  410-411 


INDEX. 


815 


ISTFjREST— continued. 

of  parties  to  suit,  transfer  of,  408- 
410 
examined  as  wit- 
nesses, 364 
of  witnesses,  363-365 
of  surviving  parties  to  suit,  404 
defendant  incapable  of  having,  5 
INTERLOCUTORY 
orders,  348-361 

alteration    or   reversal    of, 
396 
applications    for    preliminary    de- 
crees, 375 
writ  of  injunction,  194,  195 

motion  for,  217 
See  Decree;  Motion;   Order;  Peti- 
tion. 
INTERPLEADER, 
statute  of,  203 
suit  of,  revivor  of,  405 
action  directed  on,  206 
See  Bill. 
INTERPRETATION 

of  declaration  of  trusts,  40,  el  geq. 
INTERROGATORIES 
in  bill,  302,  307,  308 

as  to  documents,  12-14 
note  of,  307,  311 

on  the  third  answer  reported  insuf- 
ficient, 345 
for  examination  of  witnesses,  366- 

371 
rules  for  framing,  368 
for  cross-examination,  370 
leave  to  exhibit,  372 
examination  on,  before  master,  382 
INVENTION, 
right  to,  216 

See  Copyright;  Patent. 
INVESTMENT, 

of  trust  fund,  56,  63 
of  purchase-money,  156 
of  infant's  property,  285 
of  fund  in  court,  352 
improper,  63,  64 
See  Conversion. 
IRREGULARITY, 

enrolment  of  decree  Tacated  on,  397 
ISSUE, 

provision  for,  under  Marriage  Act, 

289,  290 
at  law,  manner  of  trial  of,  300,  301 
directed,  375,  376,  377 
devisavit  vel  non,  249 
raised  by  plea,  340,  341 

by  supplemental  bill,  412 
defect  in,  remedied  by  supplemental 
bill,  412 


JEWELS, 

suit  for  recoverv  of,  92 
JOINDER 

of  parties,  315-323 
See  Misjoinder. 
JOINT 

demand,  several  as  well  as,  319 
JOINT  STOCK  COMPANIES, 
suit  to  wind  up,  241,  322 
shares  in,  alienation  of,  242 
acts  regulating,  142 
JOINT  TENANTS, 
partition  by,  229 
conveyance  to  persons  as,  33,  34 
JUDGE, 

notes  of,  377 
rehearing  by,  396 
JUDGMENT, 

charges  under,  1  &  2  Vict.,  c.  110, 

122,  129-134,  148 
charge  on  stock  and  shares,\33 
debts,  priority  of,  252 
debt,  payment  of,  261 
person  bouad  by,  123 
decrees,  &c.,  having  efifect  of,  130, 

131 
lien  by,  equity  under,  149 
creditor  must  obtain,  148 
against  owner  of  equitable  interest, 

152 
memorial  of,  154 
undocketed,  153,  155 
when  take  effect,  145 
or  final  decree,  not  notice,  157 
docketing  or  registration  of,  not  no- 
lice,  157 
at  law,  when  chancery  will  inter- 
pose, after,  196,  197 
injunction  after,  196 
of  court,  supposed  error  in,  197 
motion  to  arrest,  300 
subpoena  to  hear,  373 
creditors,  rights  of,  129,  et  seq. 
rights  of,  extended  to  all  property, 

133 
under  statute  1  &  2  Vict.,  c.  110, 

130,  131,  132,  148 
taking  person  of  debtor  in  execu- 
tion, under,  133,  134 
See  Search. 
JURISDICTION, 

of  courts  of  law  and  equity,  distinc- 
tion as  to,  1,  175,  176,  248 
of  courts  of  equity  to  enforce  dis- 
covery, 1 
to  enforce  a  right, 

26 
to    administer  a 
right.  220 


816 


INDEX 


JURISDICTION— cowa'wMerf. 

of  equity,  after  judgment  at  law, 

196,  197 
of  court  to  decide  questions  whether 

of  law  or  fact,  375 
of  court,  in  cases  of  cross-bill,  403 
statutory,  of  court  of  chancery,  398, 

399 
appellate,  in  equity,  397-399 

House  of  Lords,  contest  of,  with 
House  of  Commons  as  to,  397, 
398 
averment  of,  in  bill,  306 
want  of,  demurrer  for,  333 

plea  of,  336 
persons  out  of,  322 
guardian  resident  beyond,  282 
ward  taken  out  of,  282 
infant  taken  out  of,  284 

See  Discovery ;   Fraud;   Ne  Exeat 
Regno. 
JURY, 

in  matters  of  account,  224-226 
See  Issue. 
LAND, 

sale  of,  contract  for,  83,  85 
cultivation  of,  83 
converting.     See  Waste. 
LANDLORD, 

equityof,  on  deposit  of  lease,  141, 142 
LAPSE, 

by  death  of  legatee,  276 
of  time  in  case  of  breach  of  trust,  62 
how  affecting  charitable  trust, 

68,  69 
no  bar  to  relief  in  cases  of 
fraud,  176 
LAW, 

questions  of,  9 
mistake  as  to,  188,  192 
mistaken,  facts  known,  189 
uncertainty  as  to,  189 
conclusions  of,  answer  as  to,  344 
deviation  from  rule  of,  85 
See  Action.;   Case. 
LEADING  INTERROGATORIES,  368 
LEASE, 

by  tenant  for  life,  3,  4 

in  tail,  99 
contract  for  granting,  82 
under  power,  rent  reserved  in,  174 
.   renewal  of,  on  request,  89 

by  trustee  for,  55 
renewal  of,  by  trustee  or  executor, 

59,  60 
of  infant  or  feme  covert,  renewal  of, 

285 
belonging   to   lunatic,  renewal    of, 
295 


LEASE — continued. 

date  of  order  of  court  as  to,  82 

deposit  of,  141 

■   See  Assignment. 
LEASEHOLDS, 

of  debtor,  131,  256 

purchaser  of,  from  executor,  156 

equities  of  redemption  of,  256 
LECTURES, 

protected  by  statute,  213 
LEGACY, 

general,  275 

cumulative,  101 

successive,  103 

bill  for,  258 

account  of,  261 

trust  for  payment  of,  156 

payment  of,  261 

recovery  of,  250 

charge,  on  several  kinds  of  assets, 
274 

construed  a  provision,  101 

as  substituted  portion,  101 

to  stranger  and   child,   distinction 
between,  102 

promise    inter   vivos,  followed   by, 
104,  105 

in  discharge  of  debt,  105 

notice  to  purchaser  of,  156 

right  of  executor  to  retain  debt  out 
of,  223 

See  Charitable;  Election. 
LEGAL 

estate,  conveyance  of,  procured  by 
purchaser,  159 

right,  in  either  party,  159 

not  in  either  party,  160 
where  none,  162 
order  to  try,  357 
LEGATEE, 

by  a  fraud,  constituted  trustee,  248 

title  of,  249 

proceedings  by,  against  executor  or 
administrator,  250,  251 

administration  bill  by,  257 

suit  by,  258,  et  seq.,  320,  410 

advertisement  for,  262 

contribution,  &c.,  between,  275 

when  party  to  suit,  315,  316,  320 
See  Class. 
LESSEE, 

discovery  by,  5 
See  Lease. 
LESSOR.     See  Landlord;  Lease. 
LETTER  MISSIVE,  311 
LETTERS  PATENT.     See  Patent. 
LIBEL, 

precluding  copyright,  216 
LIBERTY  TO  APPLY,  388 


INDEX. 


817 


LIEN, 

what  it  signifies,  126 
possession,  foundation  of,  126 
when  at  an  end,  128,  129 
equitable,  of  vendor  or  purchaser, 

122,  126-120,  152 
by  judgment,  equity  under,  149 
See  Deposit. 
LIMITATION, 

of   personal    estate,    analogous   to 

strict  settlement,  42 
of  account  of  mortgagee,  119 
of  title  of  mortgagor  to  redeem,  119 
See  Statute  of, 
LIQUIDATED  DAMAGES, 

fixed  sums  as,  108 
LIS  PENDENS, 

privileged  communications,  6,  7 
notice  by,  157 

not  notice  of  unregistered  encum- 
brance. 154 
to  bind  purchaser,  157 
LITIGATION, 

matters  in,  communications  as  to, 

6,7 
See  Bill  of  Peace. 
LITURGIES, 

right  of  printing,  214 
LIVING, 

presentation  to,  by  mortgagor,  118, 
120 

See  Presentation. 
LOAN 

by  trustee  to  lend,  56 
LORD 

of  parliament,  a  defendant,  311 
See  House  of  Lords  ;  Manor. 
LOSS, 

compensation  for,  91 
of  bond,  excusing  profert,  167 
of  bill  or  note,  168 
indemnity  in  case  of,  168 
See  Affidavit. 
LUCID  INTERVAL,  297 
LUNACY, 

eflFect  of,  182,  183 

partner,  incapacitated  by,  243 

jurisdiction  in,  how  exercised,  290, 

398,  399 
petition  in,  349 
LUNATIC, 

who  considered,  290 

lucid  interval  of,  297 

suit  by,  301,  331 

suit  against,  parties  to,  313 

without  committee,  answer  by,  8 

where  contracting  party  becomes, 

81 
trustee  being,  37,  38 

52 


LUNATIC  —continued. 
mortgagee  being,  116 
conveyance  and  contract  of,  182 
statutes    relating    to    property   of, 

285 
brothers  and  sisters  of,  288,  297 
curator  of,  estate  of,  296 
MAINTENANCE, 

allowance  of,  281,  349 

past,  allowance  for,  288 

of  lunatic,  allowance  for,  293,  297 

of  ward,  allowance  for,  286,  287 

provision  for,  286,  287 

interest     on     legacy 
when    allowed    as, 
103 
statutory  power  of,  284,  285,  286 
manner  of,  287,  288 
discovery  as  to,  3 
of  poor  clergy,  286 
MALFEASANCE, 
of  trustee,  64 

See  Breach  of  Trust. 
MANDATORY 

injunction,  what,  218 
MANOR,  LORD  OF, 
bill  against,  65 

bill  of  peace  by  or  against,  199 
See  Court. 
MANUSCRIPTS.     See  Copyright. 
MAPS, 

copyright  of,  215 
MARRIAGE, 

consideration  of,  146 
agreement  on  treaty  for,  180-182 
secret  agreement  on,  180 
contract,  fraud  on,  180 
articles,  construction  on,  41,  42 
clandestine,  bond  for  assisting,  180 
of  ward,  288,  289,  290 
of  defendant,  discovery  as  to,  3,  5 
consent  of  trustees  to,  186 
causing  abatement,  403 
act,  as  to  infant,  289 
See  Bond. 
MARRIED   WOMAN.     See  Feme  Co- 
vert. 
MARSHALLING,  271-277 
MASTER, 

reference,  to  directed,  375,  379,  387 
to  take  account,  225,  226 
on  bill  for  partition,  230, 

231 
in  suit  for  dower,  234 
as  to  profits  of  partner- 
ship, 246 
in    administration    suit, 

260,  261 
as  to  lunatic,  294 


818 


INDEX. 


UASTER— continued. 

reference  to,  for  reinvestigation,  304 
as  to  sufficiency  of  an- 
swer, 345 

jurisdiction  of,  in  conduct  of  suits, 
380 

report  of,  384-387 

in  administration  suit,  262 

to    execute    surrender    or  transfer, 
395 

in  lunacy,  294 
MATERIAL 

facts,  evidence,  as  to,  362,  363 
MEMORANDUM.     See  Agreement. 
MEMORIAL 

under  Registry  Acts,  154 
MERCHANTS, 

accounts  of,  224,  225 

what  a  stated  account  between,  227 
MERITORIOUS      OR      IMPERFECT 
C0NSIDER4TI0N, 

equity  of,  97-105 
MESSENGER,  328 
MILL, 

owner  of,  bill  of  peace  by,  199 

repairs  of,  by  co-tenant,  267,  268 
MINES, 

jurisdiction  of  court  as  to,  247 

receiver  of,  354 

quasi  partnership  in,  247 

opening.     See  Waste. 
MINORITY.     See  Infancy. 
MINUTES 

of  decree,  374,  396 
MISAPPLICATION 

of  purchase-money,  155,  156 

of  trust-fund,  352 
MISCONDUCT 

of  arbitrators,  192 

of  trustees,  ground  for  receiver,  352, 
353 

alleged  in  bill,  reason  against  de- 
murring, 336 
MISDESCRIPTION, 

condition  of  sale  as  to,  89,  90 
MISFORTUNE, 

delay  occasioned  by,  89 
MISJOINDER 

of  claim,  309,  310,  314 
MISLED 

party,  equity  of,  150 
MISREPRESENTATION 

by  plaintiff  as  to  contract,  84 

equity  originating  in,  159,  205 

fraud  by,  176 
MISSING 

instrument,  166 
MISSTATEMENT, 

fraud  by,  177,217 


MISTAKE 

affecting  specific   performance,  84, 

85,  90 
as  to  instrument,  166 
of  solicitor,  correction  of,  170 
rescinding  contract,  188 
money  paid  under,  188 
acts  done  under,  188 
of  law  or  of  fact,  191 

by  arbitrators,  192 
award  procured  by,  193 
See  Compensation;  Error, 
MIXING 

trust-funds,  57 
MODUS, 
what  is,  236 
suit  to  establish,  236 

costs  of,  390 
bill  of  peace  as  to,  199 
issue  to  try,  236 
MONEY, 

trustees  to  realize  or  secure,  55,  56 

invest,  56 
purchaser  in  possession  allowed  to 

expend,  36 
purchase,  not  paid,  127 

paid  prematurely,  128 
paid  under  mistake,  188, 
189 
See  Fieri  Facias  ;  Payment  of,  into 
Court. 
MORTGAGE, 
definition  of,  1 10 
perfect  and  imperfect,  110-134 
by  husband  and  wife,  173 
of  an  equity,  123 
debt,  payment  of,  251 
for  satisfaction  of  debts,  253 
devise,  subject  to,  264 
contribution  to  discharge,  270 
moneys  out  on,  trust  of,  28 
interest  on,  where  in  nature  of  pen- 
alty, 108,  109 
property  in,  as  assets,  264,  265,  274 
estate  in,  in  an  infant,  285 
See  Tacking. 
MORTGAGEE, 

rights  of,  110,  et  seq.,  353 

when  mortgagor  bank- 
rupt, 121 
under   Registry   Acts, 

153,  154 
in  administration  suit, 
261 
equitable  right  of,  to  receiver,  353 
costs  of  suit  of,  390 
ordinary  right  of,  to  costs,  21 
when  entitled  to  a  sale,  120 
power  to  tack,  163-165 


INDEX. 


819 


MORTGAGEE— cowimuerf. 

in  possession,  duties  of,  117,  118 

second,  122 

attainder  of,  50 

death  of,  without  heirs,  50,  116 

heir  of,  being  an  infant,  116 

being  lunatic,  IIG 

renewal  of  lease  by,  60 

always  mortgagee,  112 

when  bound  to  reconvey,  115 

careless  or  negligent,  151 

undocketed  judgments  as  against, 
155 

inquiry  as  to  wilful  default  of,  221 
MORTGAGOR, 

rights  of,  110,  et  seq. 

in  possession,  114 

answer  of,  as  to  costs,  21 

as  to  prior  mortgage,  122 

of  different  estates,  165 

receiver  against,  353 

becoming  bankrupt,  121 
See  Infant. 
MOTHER, 

of  infant,  rights  of,  283,  284 

consent  of,  to  marriage,  289 
MOTION, 

classes  of,  348,  349 

for  common  injunction,  358 

to  extend  injunction,  195 

to  dissolve  injunction,  196,  205,  206, 
356,  359 

for  production  of  documents,  15,  18 

for  preliminary  decree,  375 

to  confirm  report,  385 

to  discharge  order  is  regularly  made, 
397 

by  defendant  that  the  plaintiff  may 
revive,  or  bill  may  be  dismissed, 
406,  407 

notice  of,  348,  349 

See  Interlocutory  Orders. 
MOTIVE, 

for  successive  legacies  or  gifts,  103, 
104 
MULTIFARIOUSNESS, 

what,  309,  310 

as  a  defence,  331 

demurrer  for,  333 
MUNICIPAL  CORPORATION  ACT, 

trust  under,  67,  76 
MUTUAL, 

fulfilment  of  contract,  80 

accounts,  see  Account!. 

debts,  see  Set-off. 
MUTUALITY', 

between  parties  to  contract,  82 
NE  EXEAT  REGNO, 

writ  of,  respecting  alimony,  47 


NE  EXEAT  REGNO— con/muerf. 

application  for,  360,  361 

to  discharge,  361 
See  WrUof. 
NEGATIVE  PLEA,  337 
NEGLIGENCE, 

evidence  of  fraud,  151 
NEGOTIABLE 

instrument,  action  on,  168 

security,  fraudulent  holder  of,  in- 
junction against,  207 
See  Security. 
NEW  MATTER, 

after  decree,  417,  418 

statement  as  to,  in  bill  of  review, 
418 
NEW  TRIAL, 

at  law,  300,  301,  366 

on  issue  directed,  377 

on  action  directed,  379 
NEXT  FRIEND, 

of  married  woman,  suit  by,  301 
NEXT  OF  KIN, 

suits  by,  320 

proceedings  by,  against  executor  or 
administrator,  251 

bill    by,  when    no   preliminary   in- 
quiry directed,  381 

when  party  to  suit,  315,  316,  320 

on  failure  of  bequest,  33,  138 

presumptive,  of  lunatic,  294,  295 

advertisements  for,  262 

reference  to  master  as  to,  379 
NOMINATION.     See  Appointment. 
NON  COMPOS  MENTIS, 

when  father,  mother,  or  guardian  is 
289 

return  of,  293 

See  Imbecility ;  Lunacy. 
NON-DISCLOSURE, 

equivalent  to  fraud,  179,  196 
NOTE 

of  agreement,  see  Agreement. 

action  on,  168 

of  interrogatories  in  bill,  307,  311 

See  Security  ;  Traversing  Note. 
NOTICE, 

what  amounts  to,  157,  158,  159 

of  assignment,  effect  of,  53 

of  charitable  trust,  purchaser  with, 
69 

of  prior  contract,  152 

to  abandon  contract,  88 

to  pay  mortgage  money,  114 

of  claim,  150 

of  an  equity,  151 

of  mesne  equity,  163 

to  postpone  equity,  161 

of  covenant,  152 


820 


INDEX. 


NOTICE— coji/Mi««f. 

of  dower,  152,  153 
of   prior   encambrance    not    regis- 
tered, 154 
of  Tudocketed  jadgments,  155 
under  3  &  4  Yict.  c.  82,  immaterial, 

155 
of  breach  of  trnst,  156 
to  purchaser,  of  debts  and  legacies, 

156,  157 
of  fraud,  157, 158,  159 

purchaser  denying,  159 
as  to  title  deeds,  158 
given  to  trustees,  161 
of  motion,  348,  349,  352 
See  PuTchate. 
NUISANXE.  210-212 
NUMEROUS, 

interested  parties  being,  319,  320 
OATH 
of  defendant  to  plea,  341 
defendant  to  answer  on,  344 
OBJECTIONS 
to  title  waived,  87 
to  report  of  master,  384 
OBLIGATION, 

joint  and  several,  172 
OCCUPATION  RENT,  232 
OFFICE, 

discovery  as  to,  3 
OFFICERS 

of  Court  of  Chancery,  198,  199 
OFFICIAL  ACTS, 

claims  arising  out  of,  198,  199 
OFFICIAL  PERSONS, 

discovery  by,  7,  8,  344 
ORDER 

on  further  directions,  388 
requiring  act  to  be  done,  394 
irregularly  made,  397 
to  take  bill  pro  confesso,  objections 

to,  400 
t<f  stay  proceedings  pending  appeal. 
401 

See    Decret;    Farther   Directiont ; 
Interlocutory. 
ORDERS  IN  COUNCIL, 

printing,  214 
ORIGINAL  BILL, 

in  nature  of  rerivor,  406 

supplement,  410,  414 

form  of,  412 
review,  416 
See  Supplemental. 
OUSTER  LE  MAIN,  298 
OUTLAW, 

disability  to  sue,  331 
OUTSTANDING 

property,  trustee  of,  55,  56 


OUTSTANDING— «on/inw?rf. 

estate,    injunction   against   setting 

up, 129 
terms,  equity  to  have,  removed,  249 
impediment  to  ejectment,  378 
See  Asset*;  Tervu. 
OVERRULED, 

plea,  342 
OWNERS.     See   Shipovnera;    Specific 

Ckatith;   Title  Deeds.         ' 
OWNERSHIP, 

legal  and  equitable,  39,  40 
equitable,  to  what  subject,  42 

of  personal  estate,  how 
transferred  or  changed, 
53 
devolution  and  transfer  of,  49,  51 
of  trustee,  55 

acts  of,  purchaser  doing,  87 
modified,  of  donee  of  power,  99 
See  Conversion. 
PARENT, 

purchase  by,  35 
gift  or  legacy  by,  104 
children  being  creditors  of,  105 
consent  of,  to  marriage,  289 
PARISH, 

charitable   bequest   to,   apportion- 
ment of,  76 
inhabitants  of,  bill  by,  321 
PAROL, 
trust  by,  28 
waiver  by,  84 

contracts  relating  to  land,  85 
agreement,  possession  upon,  86 
evidence     to    reform    conveyance, 
171 

See  Evidence. 
PAJISON.     SeeJforfiM;  Tithes. 
PARTIALITY 

to  vitiate  award.  192 
PART  PERFORMANCE, 
of  parol  contracts,  85 
doctrine  of,  86 
what  acts  constitute,  86,  87 
PARTIES, 

generally,  312-324 
defendants,  who  may  be  made,  20 
defect  of  suit,  in  respect  of,  408 
want  of,  as  a  defence,  331 
demurrer  for,  333 
to  suit,  evidence  of,  as  witnesses, 

363 
to  supplemental  bill,  414,  415 
See  Class;  Numerous. 
PARTITION, 

generally,  229-232 
suits  for,  costs  of,  389 
for  an  infant,  284 


INDEX, 


821 


partni:r, 

ricrhts  of,  239-247 

when  party  to  sait  as  to  partnership, 

321 
retired,  liability  of,  ]  73 
accoontg  between,  244 
death  of,  effect  of,  173 
deceased,  interest  in  goodwill,  246 
renewal  of  lease  by,  60 
PARTN'ERSHIP, 
generally,  239-247 
suits  in  behalf  of,  320 
bill  as  to,  309,  310,  321 
suit    for    managing    or   dissolving 

parties  to,  321,  322 
contract  for  entering  into,  82 
land  held  by,  trust  as  to,  35 
debts  owing  by,  173 
deed,  covenants  in,  240 
plea  denying,  337 
receiver  in  cases  of,  354 
See  Mines;   Collierie*. 
PARTY 

and  party,  costs  as  between,  391 
PATENT, 

statutes  as  to,  212 
ex  parte  injunction  as  to,  355 
disputed,  infringement  of,  378 
right,  212,  213 
See  Infringement. 
PAYMENT, 

of    principal     or     interest    within 

twenty  years,  114 
of  purchase  money,  156 
of  rents.  238 

forfeiture  for  want  of,  109 
into  court  of  balance  in  hand   of 
executor,  258,  259 
order  for,  349,  350-352 
by  plaintiff  at  law,  359 
of  money  directed  by  decree,  394 

contempt  as  to,  394,  395 
See  Debtg  ;  Purchase  ;  Rentt. 
PEACE.     See  Bill. 
PEER. 

privileges  of,  326 
being  defendant,  311 
PENALTY, 

discovered  as  to,  2,  4,  5,  6,  343 
equity  for  relief  against  enforcement 

of,  107-109 
statutes  as  to,  108 
for  non-performance  of  covenants, 

108 
for  non-payment  of  money,  108 
witness  exposing  himself  to,  370 
PENDENTE  LITE,  331 
suit  pending,  plea  of,  336 
receiver  appointed,  352 


PENDENTE  LITE— rontfuwi 

injunction  granted,  355 

alienation,  effect  of,  408 

administration,  410 
PERFORMANCE 

of  trusts,  suits   for,   coats  of,  390, 
391 

See  Act*;  Part  Performmtee;  Pen- 
alty ;  Specific  Performanct. 
PERPETUAL, 

injunction  made,  196 
PERPETUATION, 

of  testimony,  23-25,  249 
bill  for,  311 
suits  for,     costs     of, 
389 
See  Purchater. 
PERPETUITY, 

rule  as  to,  42,  43 
PERSON, 

of  unsound  mind,  statutes  relating 
to  property  of,  285 

default  in  appearance  of,  328 
PERSONAL  CHATTELS, 

trust  as  to,  42 

lien  on,  126 
PERSONAL  ESTATE, 

declaration  of  trust  as  to,  28 

liabilities  of,  94,  95 
See  Conversion. 
PERSONAL    REPRESENTATIVE. 

See  Administrator ;  Executor. 
PETITION, 

classes  of,  348,  349 

of  right,  293 

for  preliminary  decree,  375, 

to  be  heard  with  cause,  388,  408 

to  confirm  report,  385 

to  have  fund  out  of  court,  389 

for  rehearing  or  appeal,  396—401 
form  of,  399 

service  of  copy  of,  348,  349 
PICTURES, 

suit  for  recovery  of.  92 
PIN-MONEY, 

trust  as  to,  43,  46 
PIRACY 

of  copvright,  214,  215 
PLAINTIFF, 

at  law  and  in  equity,  1,  2 

interests  of,  313 

female,  marriage  of,  403,  404 

becoming  bankrupt,  409 
PLEA, 

generally,  336,  342 

protection  from  discovery  by,  3 

of  dismissal  of  bill,  373 

puis  darrein  continnance.  402 

to  bill  of  revivor,  405,  407 


822 


INDEX. 


PLEADING, 

in  courts  of  equity,  299 

at  law,  299-301 

in  original  suit,  use  of,   in  supple- 

meutal,  411 
mistake  in,  197 
PORTION, 

provision  for  raising,  43 
substituted,  101 

double,  presumption   against,   104, 
105 
POSSESSIO  FRATRIS,  50 
POSSESSION, 

of  plaintiff,  document  in,  12,  17,  18 
of  defendant,  document  in,  14 
of  documents,  350 

suit  for,  13 
of  deeds,  protection  by,  160 
of  trustees  by  construction,  62,  63 
upon  parol  agreement,  86 
purchaser  taking,  86,  87 
mortgagor  in,  114 

for  twenty  years,  eflFect 
of,  114,  119 
mortgagee  in,  117,  118,  119 
of  receiver,  355  • 
of  foundation  of  lien,  126 
where  evidence  of  fraud,  151 
of  estateof  idiotor  lunatic  deceased, 
298 

See  Reduction  into. 
POSSESSORY  RIGHT, 

suit  as  to,  parties  to,  317 
POSSIBLE  INTEREST, 
assignment  of,  54.  55 
POSTEA,  376 
POSTPONEMENT, 

of  day  of  payment,  127,  128 
POWER, 

trust  in  form  of,  29 
in  nature  of  trust,  100 
to  dispose  of  by  will,  95 
created  by  way  of  use,  defective  exe- 
cution, 99,  100 
of  sale  in  mortgage,  121 
of  revocation,  may  render  convey- 
ance voidable,  146 
of  appointment,  abuse  of,  185 
illusory  appointment  under,  185 
of  sale  to  pay  debts,  255 

See  Appointment;    Election;    Pos- 
session. 
PRAYER, 

of  process,  302,  310,  311 

how  framed,  312 
in  supplemental  bill,  414 
in  bill  of  revivor,  407 
for  relief,  302,  308-310 
for  general  relief,  308,  309 


PRAYER— continued. 
for  ne  exeat,  360 
to  bill  of  revivor,  407 
to  supplemental  bill  in  case  of  bank- 
ruptcy or  in- 
solvency, 409 
in  nature  of  bill 
of  review,  419 
to  bill  to  impeach  or  set  aside  de- 
cree for  fraud,  419,  420 
PRECATORY  WORDS, 
trust  by  using,  20,  29 
PRELIMINARY, 

accounts  and  inquiries,  380,  381 
decree,  375,  380 

See  Interlocutory  Orders. 
PRESCRIPTION, 

de  non  decimando,  236 
de  modo  decimandi,  236 
PRESENTATION, 

to  church,  mortgage  of,  120 
PRESUMPTION, 

of  law,  trust  by,  27,  31,  33,  et  seq. 
of  waiver,  87 

on  purchase  in  name  of  another,  101 
as  to  successive   legacies  or  gifts, 

103 
against  double  portion,  104,  105 
evidence  in  rebuttal  or  confirmation 

of,  106 
from  enjoyment  of  tithes,   236 
PRETENCE, 

charge  in  bill,  303 
PRICE.     See  Purchase. 
PRINCIPAL, 

liability  of,  discharge  of,  106 

in  suit  against  agent,  220,  221,  222 

and  surety,   contribution   between, 

269,  270 
party  to  suit  against  surety,  319 
money,  payment  of,  within  twenty 
years,  114 

See  Agent;  Steward. 
PRINTER, 

Queen's,  214 
PRIOR, 

mortgage,  mortgagor  bond  to  dis- 
close, 122 
encumbrance,  not  registered,  154 
PRIORITIES, 

generally,  145-162 
of  legal  over  equitable,  148,  256 
decree  to  settle,  162 
under  mortgagor,  as  to  redemption, 
113 

See  Contribution  ;    Exoneration  ; 
Marshalling. 
PRIVILEGE, 

of  Peerage  or  Parliament,  326,  327 


INDEX. 


823 


PROBATE 

duty,  effect  of  conversion  as  to,  139, 

246 
copy  of  will  of  personal  estate,  248 
fraudulently  obtained,  248 
grant  of,  opposition  to,  249 
litigated,  352 
PROCEEDINGS 

separate,  by  creditor,  259  260 
order  to  stay,  260 
See  Action ;  Suit. 
PROCESS 

generally,  324-330 
of  contempt  to  enforce  answer,  326 
performance 
of  decree, 
326 
effect  of,  326 
service  of,  abroad,  323,  327 
present  practice,  as  to,  327-330 
See  Prayer. 
PROCLAMATIONS, 

printing,  214 
PRO  CONFESSO, 

taking  bill,  327,  329,  374 
bill  taken,  rehearing  of,  400 
See  Bill. 
PRODUCTION  OF  DOCUMENTS,  12, 
13 
order  for,  16,  349,  350 
grounds  for  refusing,  16 
in  possession  ofplaintiff,  17,  18,  350 
on  reference  to  master,  225,  382 
allegations  in  bill  to  obtain,  305 
on  trial  of  issue,  377 
action,  378 
PROFERT, 

at  law,  doctrine  of,  167,  168 
PROFESSIONAL  ADVISER,  6,  344, 

370 
PROFITS, 

made  by  trustee,  account  of,  64 

agent,  221,  222 
of  partnership,  division  of,  244,  246 
inquiry    directed  as 
to,  246 
of  mine  or  colliery,  suit  for,  247 
PROLIXITY 
of  bill,  306 
of  answer,  11 
PROMISE, 

consideration,  basis  of,  97 

verbal,  that  agreement  be  altered, 

84 
inter  vivos,  followed  by  gift  or  lega- 
cy, 104,  105 

See  Consideration. 
PROOF, 

production  of  documents  for,  305 


PROSECUTION, 

bill  dismissed  for  want  of,  347,  373 
PROTECTION, 

of  documents  from  production,  15 
See  Discovery. 
PROVISION, 

legacy  construed  as,  101,  103 
purchase  construed  as,  101 
PUBLIC, 

interest,  discovery  to  prejudice,  8 
purposes,  trust  for,  65,  et  seq. 
company,  shares  in,  sale  of,  83 

restraining  order  against, 
358 
trust,  suit  as  to,  parties  to,  313 
PUBLICATION, 

in  suit  to  perpetuate  testimony,  25 
of  depositions  taken  de  bene  esse, 

25 
application  to  enlarge,  371 
passing,  367,  371 
passed,  new  evidence  after,  371 
PUNISHMENT, 

discovery,  leading  to,  3 
PURCHASE, 

parol  agreement  for,  possession  un- 
der, 86 
in  name  of  another,  101 
without  notice,  equity  originating 

in,  159 
without  notice,  plea  of,  162 
for  valuable  consideration,  plea  of, 
337 
See  Conversion. 
PURCHASE-MONEY, 

resulting  triist  from,  33-35 

parol  evidence  to  prove  payment  of, 

34 
being  trust  fund,  143,  144 
application  of,  155 
repayment  of,  in   case  of  mistake, 

190 
interest  on,  88 
See  Compensation 
PURCHASER, 

rights  of,  under  Registry  Acts,  153, 

154 
for  value  without  notice,  37 
without  notice  of  debts,  156,  157 

not  compelled  to 

discover,  160 
bill    to    perpetu- 
ate     testimony 
against,  162 
with  notice,  273 

of  charitable  trust,  69 
having  notice  of  undocketed  judg- 
ments, 155 
undocketed  judgment  as  again8t,155 


824 


INDEX. 


PVRCHASER— continued. 
in  possession,  86 
of  realty,  right  as  to  title,  87 
equitable  lien  of,  122,  126-129 
how  judgments  operate  against,  131 
grants  void  against,  145 
getting  in  term,  52 
having  acquired,  conflicting  rights, 

53 
under  trust  for  sale,  155,  156 
debtor  for  his  purchase-money,  352 
See  Money;  Vendee. 
QUARRIES, 

working,  injunction  against,  210 
QUEEN  CONSORT, 

suit  as  to  right  of,  313 
QUO  WARRANTO, 

discovery  subjecting  to,  3 
RAILWAY 

company,  injunction  against,  211 
share,  265 
REAL  ESTATE, 

declaration  of  trust  as  to,  28 
resulting  trust  as  to,  31 
specific  performance  as  to,  85 
judgment,  charge  on,  132 
See  Lien;  Conversion. 
REBELLION, 
writ  of,  325 

abolished,  328,  393 
RECEIPT, 

by  trustees,  58 
by  executors,  58 
trustee's,  a  discharge,  156 
RECEIVER, 

right  of  equitable  mortgagee  to,  122, 

123 
legal  mortgagee  cannot  have,  122 
depositee  of  deeds  entitled  to,  125 
creditor's  right  to  appointment  of, 

129 
in  suit  to  wind  up  partnership,  243 
right  of  tenant  in  common  of  mines, 

&c.,  to  147 
in  administration  suit,  259 
bill  for  appointment  of,  281,  284 
of  the  estate  of  wards,  284 
lunatic,  293 

duty  of,  293, 
294 
of  the  estate  of  lunatic,  security  by, 

294 
order  for  appointment  of,  349,  352- 

355 
master  to  appoint,  380 
accounts  of,  225 
RECOGNISANCE, 
person  bound  by,  123 
debts  by,  priority  of,  252 


RECOGmSAT^CE— continued. 

memorial  of,  154 
RECOMMENDATORY  WORDS, 

trust  by  use  of,  29,  30 
RECONVERSION, 

what,  136,  137 
RECONVEYANCE, 

by  mortgagee,  115 

by  substitution  by  order  of  court, 
116,  117 
RECORD, 

plea  of  matter  of,  341 

what  constitutes,  347,  396 
RECTIFICATION, 

of  clerical  slip  in  order,  396,  397 

of  defect  in  bill^  403 
RECTOR, 

right  to  an  issue  as  to  modus,  377 

cost  of,  in  suit  to  establish  modus, 
390 
REDEMPTION, 

clause  of.  111 

right  to  sue  for,  113 

right  of  restriction  of,  112 

suit  for,  112-120 

suits  for,  or  in  nature  of  suits  for 
cost  of,  390 

expenses  of,  115 

of  escheated  estate,  115 
See  Equity  of. 
REDUCTION  INTO  POSSESSION, 

assignment  equivalent  to,  142 
RE-ENTRY, 

clauses  of,  109 
RE-EXAMINATION, 

after  publication,  372,  383 
See  Examination. 
RE-EXECUTOIN,  166,  168 
REFERENCE 

to  master,  379-387 

See  Arbitrator  ;  Auditor  ;  Master. 
REGISTER 

of  judgment,  132 

acts,  153 

See  Conveyance. 
REHEARING, 

generally,  388,  396-401 

on  supplemental  bill,  in  nature  of 
review,  419 

and  hearing   on    supplement    and 
review,  418,  419 
REGISTRATION, 

under  1  &  2  Vict.  c.  110,  155 

of  deed,  not  notice,  157 

of  judgment,  not  notice,  157 
RELATIONS, 

trusts  for,  29,  66 
RELATOR, 

bill  and  information  by,  302 


INDEX. 


825 


RELEASE 
of  trustee  to  co-trustee,  37,  38 

when  trust  at  an  end,  59 
decree  for  execution  of,  106 
executed  under  mistake,  188 
under  seal,  plea  of,  337 
plea  of,  338 
RELIEF.     See  Prayer  for. 
REMAINDERMAN, 
quasi  lieir,  99 
bargain  with,  186 
after  estate  tail,  when  party  to  suit, 

315,  316,  411 
bill  of  supplement  and  review  by, 
419 
RENEWAL.     See  Lease. 
RENT, 

intermediate,  88 

payment  of,  covenant  for,  1 09 

statute  as 
to,  109 
payment  of,  bill  to  obtain,  237,  238 
mortgagor  entitled  to,  114 
creation  of,  in  partition,  231 
to  co-owner,  232 

bygone,  heir    or   devisee   charged 
with,  263 
See  Bill. 
RENUNCIATION 

of  trust,  how  evidenced,  37 
REPAIR, 

covenant  to,  83,  109 

contract  to,  83 

mortgagee  in  possession  bound  to, 

117,  118 
by  co-tenant.  267,  268 
REPLICATION, 
effect  of,  20 
to  plea,  342 
to  answer,  form  of,  347 

omission  to  file,  347 
REPORT 

of  master,  225,  226,  383,  384-387 

in  lunacy,  294 
of  master,  as  to  suflBciency,  345 

exceptions  to,  345 
warrant  of   master  for  preparing, 

383 
separate,  385 
REPRESENTATION, 

fraud  by,  176,  177,  178 
REPRESENTATIVES 

of  party  chargeable,  bill  of  revivor 
and  supplement  against,  407 
See  Adminigtralor ;  Executor. 
RESCISSION,  175-193 
RESERVATION 

of  rent  in  lease,  174 
RESIDUARY  BEQUEST,  264 


RESTRAINING  ORDER 

as  to  stocks  and  dividends,  358 
RESTS  IN  ACCOUNTS, 

as  to  allowing  against  mortgagee  in 
possession,  118,  119 
RESULTING  TRUSTS 
generally,  27,  32,  33 
in  case  of  uncertainty,  29,  32,  69 
by  presumption  of  law,  31 
efiFect  of,  33 
for  a  purchaser,  101 
See  Conversion. 
RETAINER 

in  nature  of  set-off,  223 
of  bill,  see  Bill. 
RETIREMENT 

of  trustee,  38,  39 
RETURN 

of  commissioners  for  assignment  of 
dower,  380 
settling  boun- 
daries, 380 
partition,  231 
de  lunatico  in- 
quirendo,  392 
by  sheriff  to  writs,  324,  325,  328, 
394 
REVERSAL 

of  decree  or  order,  396,  397,  417 
REVERSION, 

dry,  mortgage  of,  120 
REVERSIONARY  INTEREST 

of  wife,  142 
REVERSIONER, 

bargain  with,  186 
REVIEW, 

bill  of,  416,  417 
in  nature  of,  417 
of,  form  of,  418 

leave  to  file,  417,  418,  419 
statement  in,  of  leave  obtained 
to  file,  418 
of  master's  report,  387 
REVIVOR, 

bill  of,  402,  403-408 

form  of,  405,  407 
who  may  file,  403-407 
and  supplement,  bill  of,  408 
REVOCATION, 

power  of,  may  render   conveyance 
voidable,  146 
See  Power. 
RIGHT, 

assignment  of,  54 

bill  of  peace  as  to,  199-202 

general,     ascertained,     injunction 

granted  on  bill  of  peace,  200 
legal,  of  plaintiff  in  injunction  suit, 
tried  at  law,  217 


826 


INDEX. 


RISK, 

indemnity  against,  91 
RULE.     See  Decree. 
SALE 

in  case  of  mortgage  by  deposit,  125 
Welsh  mortgage,  125 
mortgage  by  trust,  126 
of  lien,  128 
of  property  mortgaged,  120,  261 

suits  for  costs 
of,  391 
power  of,  in  mortgage,  121 
with  power  to  repurchase.  111 
trustee  for,  55 
on  equitable  elegit,  130 
trust  for,  operating  as  conversion, 

190,  140 
and  conversion  of  partnership  estate, 

244 
of  land,  contract  for,  considered  as 

performed,  140 
bona  fide,  after  prior  grant,  146 
injunction  against,  144,  146 
for  satisfaction  of  debts,  253,  255 
master  to  superintend,  379,  380 
See  Auction  ;  Bargain  ;  Condition  ; 
Conversion. 
SCANDAL 
in  bill,  306 
in  answer,  343 
See  Impertinence. 
SCHEDULE 

in  answer,  of  documents,   16,  344, 

349 
to  answer,  344,  345 

how  referred  to,  345 
SCHOOLS.     See  Grammar  Schools. 
SCULPTURES, 

protection  to,  214 
SEAL, 

contracts  under,  see  Discharges. 
securities  not  under,  167 
SEARCH 

for  deed  or  judgment,  presumed  no- 
tice, 157 
SECURITY, 

trust  property  on,  56 

conveyance  being,  right  to  redeem, 

111,  122    . 
collateral  mortgagee  selling  on,- 119 

in  case  of  lien,  128 
imperfect,  what  is,  122 
sheriff  to  seize,  131 
negotiable,  lost,  167 
under  writ  of  ne  exeat,  360,  361 
See  Instrument;  Mortgage. 
SEPARATE 
account,  388 
property,  wife's  power  over,  45 


SEPARATE— con/m?<«<f. 

trust,  language  creating,  45 
use,  trust  for,  43,  44,  289 
SEPARATION 

deed  of,  44 
SEQUESTRATION, 
writ  of,  325,  394,  395 
nisi,  326 

in  default  of  answer,  329 
SEQUESTRATOR 

authorized  bv  writ  of  sequestration, 

325 
power  of,  to  seize  and  dispose   of 
documents,  395 
SERGEANT-AT-ARMS,  325,  328,  329, 

394 
SERVICE 

of  subpoena,  324,  327,  328 

abroad,  327 

of  copy  of  petition,  348,  349 

of  decree,  394 
to  ancient  mill,  bill  of  peace  as  to, 
199 
SET-OFF, 
right  of,  222 

tried  at  law,  222 
Avhen  tried   in  equity,  222, 
223 
statutes  of,  222 
SETTLEMENT, 
articles  for,  41,  42 
wife's  equity  for,  43,  47,  48 

waiver  of,  48 
children's  right  to,  48,  49 
correction  of,  171 
on  marriage  of  ward,  288 
affecting  parties  to  suit,  to  revive, 
408 
SEVERANCE.     See  Partition. 
SHARES, 

fi.  fa.  cannot  operate  on,  130,  131 
judgment,  charge  on,  132 
of  partners,  sale  of,  242 
SHERIFF, 

duties  under  1  &  2  Vict.  c.  110,  131 
division  by,  on  partition,  230 
See  Writ. 
SHIP, 

subject  of  tenancy  in  common,  233 
repairs  of,  268 

jurisdiction  as  to,  in  Court  of  Ad- 
miralty, 233 
See  Average. 
SHIP-OWNERS, 

responsibility  of,  act  limiting,  206, 

207 
liberty  of,  to  employ  ship,  233 
SIMONY, 

discovery  as  to,  3 


INDEX. 


827 


SIMPLE  CONTRACT, 
debt  may  be  tacked, 164 
debts  on,  priority  of,  252 
SOCIETIES.     See  Friendly. 
SOLICITOR, 

communications  with,  6,  7 
trustee  being,  61 
notice  to,  157 

mistake  of,  correction  of,  170 
jurisdiction  over,  349 
and  client,  costs  as  between,  391 
See  Attornef/. 
SOLICITOR-GENERAL, 

complaint  preferred  by,  301 
SPEAKING  DEMURRER,  335 
SPECIAL 

circumstances,  liberty  to  state,  384, 
'     385 

issue  found  with,  376 
verdict,  376,  385 
case,  376 

injunction  to  restrain  proceedings, 
195, 198,  359 
SPECIALTY, 

debts  by  priority  of,  252 

creditors  by,  rights  of  by  statutes, 

253,  254 
decree  for  delivery  and  cancellation 

of,  106 
See  Discharge. 
SPECIE, 

enforcement  of  contract  in,  82,  etteq. 
See  Specific  Performance. 
SPECIFIC 

allegations  in  bill,  305 
chattels,  order  directing  to  be   de- 
livered up  or  secured,  91 
devise,  what  is,  265 
legatee,  rights  of,  to  be  exonerated, 
265,  275 
SPECIFIC  PERFORMANCE, 
generally,  78-92 
bill  for,  receiver  on,  354 
ne  exeat  on,  300 
inquiry  on,  381,  382 
evidence  on,  362 
costs  of,  391,  392 
reference  in  suit  ffcr,  380 
of  contract  to  convey,  123,  146 
SPLITTING  UP, 

cause  of  suit,  331 
STAKEHOLDER, 

protection  of,  202 
STATE, 

matter  of,  discovery  as  to,  344 
of  facts  before  Master,  383 
STATED  ACCOUNT, 
effect  of,  226 
when  opened,  226,  227 


STATEMENT 

in  bill,  302-303 
STATUTE 

of  Frauds,  27,  28,  84,  85,  123,  125, 

129,  171,  254 
of    Frauds,    declaration    of    trust 
under,  27,  28 
requirements    of,   not 

complied  with,  86 
plea  of,  337 
of  Distributions,  relations  within,  29 
of  Limitations,  173,  227,  258 
plea  of,  337 
of  action  and  suits, 
69,  234,  235 
of  guardianship,  280 
of  interpleader,  203 
of  Merton,  234 
of  partition,  229,  230 
of  set-off,  222 

as  to  Court  of  Chancery,  327 
service  abroad,  327 
contempts,  394,  395 
taking  bill  pro  confesso,  326, 

327 
custody  of  infants,  283,  284 
property  of  persons   not  sui 

juris,  285,  295 
lunatics,  291,  292 
traverse  of  inqaisition,  293 
joint  stock  companies,  242 
submission  to  arbitration,  192, 
193 
for  improvement  of  law  of  evidence, 

363 
making  real  estate  assets,  253,  254, 

275,  276 
debts  by,  priority  of,  252 
persons  bound  by,  123 
memorial  of,  154 
lectures  protected  by,  213 
STEWARD, 

bill   for  account  by,  against   em- 
plorer,  221 
See  Agent. 
STIPULATED  PAYMENT 

held  penal,  108 
STOCK, 
sale  of,  83 
mortgage  of,  120 
fi.  fa.  cannot  operate  on,  130,  131 
judgment,  charge  on,  132 
belonging  to  infant,  286 

lunatic,  296 
transfer  of,  into  court,  352 
distringas  as  to,  357,  358 
See  Payment  into  Court. 
STOCKJOBBING, 
discovery  as  to,  6 


828 


INDEX. 


STRANGER, 

purchase  in  name  of,  102 
SUBMISSION 

to  arbitration  made  rule  of  court, 
statutes  as  to,  192,  193 
SUBP(ENA, 

writ  of,  prayer  for,  308,  310,  311 
service  of,  324 
substituted  service  of,  324 
to  hear  judgment,  373 
to  revive  suit,  prayer  for,  407 
in  nature  of  scire  facias,  to  revive 

decree,  406 
for  costs,  394 
SUBSTITUTION 

by  court  of  persons  to  convey,  37, 
39 
SUBTRACTION 

of  tithes,  235,  236 
SUFFICIENCY 
of  plea,  341,  342 
of  answer,  345 
SUIT, 

discovery  in  aid  of,  18,  19,  23 
defence  in,  discovery  in  aid  of,  9 
by  trustee  for  direction,  59 

costs  of,  64, 
65 
for  foreclosure,  112,  113 
for  redemption,  112 
separate,   for   administration,    259, 

260 
by  one  on  behalf  of  himself  and 
'others,  319,  320 

See    Bill;    Priorities;    Statute   of 
Limitations. 
SUPERSTITIOUS  USE, 

trust  tor,  67 
SUPPLEMENTAL 

bill,  402,  403,  408-415 
form  of,  414 
and  bill  of  revivor,  408 
bill  in  favor  of,  form  of,  412,  414 
in  nature  of  bill  of  review,  416, 

418,  419 
added  to  bill  of  review,  418 
necessary'  party  added  by,  412 
answer,  347 

See  Bill;   Original. 
SUPPRESSION 
'      of  depositions,  370,  372 
SURCHARGE  AND  FALSIFY, 

liberty  to,  227 
SURETIES, 

rights  of,  268,  269,  270 

between  themselves,  268, 
269 

and  principal,  268, 
269,  270 


SURETIES— eon^m?<ec?. 

of  committee  or  receiver,  294 

suit  against  parties  to,  319 

discharge  of,  106 
SURETYSHIP, 

bond  of,  172 

fraud  as  to,  179 
SURPLUS, 

right  to,  139 
SURPRISE, 

enrolment  of  decree  vacated  on,  397 
SURRENDER 

of  copyhold,  equity  for  supplying, 
98,  99 

decree  for,  394,  395 

by  master,  instead  of  party  in  con- 
tempt, 395 
See  Copyhold. 
SURVIVING 

interest  in  suit,  404 
See  Revivor. 
TACKING, 

doctrine  of,  162-165,  271 
TAXATION 

of  costs,  391 
TENANTS, 

bill  of  peace  by  or  against,  199,  200 
interpleader  by,  204 
See  Joint  Tenants. 
TENANTS  IN  COMMON, 

partition  by,  229 

right  to  receiver  of,  354 
See  Ship. 
TENANT  FOR  LIFE, 

lease  by,  3,  4 

waste  by,  4 

whether  defendant  is,  discovery  as 
to,  4 

renewal  of  lease  by,  50 

partition  by,  230 

and    remainderman,    suit    against, 
411,412 

decree  against,  reversal  of,  419 
TENANT  IN  TAIL, 

leases  or  conveyances  by,  99 

charge  paid  off  by,  270 

party  to  suit,  315,  316 

born  pending  suit,  411,  412 

bound  by  previous  proceedings,  412 
TENANT  FOR  YEARS, 

partition  by,  230 
TENDER 

to  save  coats,  21,  393  , 

TENEMENTS, 

contract  of  sale  of,  85 
TERMS, 

satisfied  attendance  of,  51,  52,  159, 
160 

in  gross,  52 


INDEX. 


829 


TERMS— continued. 

outstanding,  assignment  of,  159 
equity  to  have  removed,  249 
TESTAMENTARY 

assets,  administration  of,  248-266 
expenses,  what,  261 
TESTIMONY.     See  Perpetuation. 
THEATRE, 

engagement  to  perform  at,  81 
patent  to  keep,  213 
TIMBER, 

directions  for  preservation  of,  43 
cut  by  guardian  or  trustee,  142,  143 

stranger,  143 
mortgagor  restrained  from  catting, 

114 
felling,  injunction  against,  210 
blown  down  by  accident,  143 
See  Waste. 
TIME 

to  make  out  title,  85,  87,  et  seq. 

not  of  essence  of  contract,  88 

for  payment,  contract  to  give,  107, 

126,"  127 
applications  for,  to  master,  380 
TITHES, 
jurisdiction  as  to,  235,  236,  237 
bill  of  peace  as  to,  199 
subtraction  of,  235,  236 
Commutation  acts,  237 
See  Modus. 
TITLE 

to   real  estate,  in  bill  for  specific 

performance,  84 
on  purchase  of  realty,  87 
time  to  make  out,  85,  87,  et  seq. 
objections  to,  waived,  87 
proved  bad,  87 
how  perfected  in  equity,  160 
reference  to  master  as  to,  379 
of  plaintiflF    when    bill    filed,    412, 

413 
of  defendant  on  bill  of  interpleader, 
inquiry  as  to,  206 
See  Defects;  Evidence. 
TITLE  DEEDS, 

order  directing,  to  be  delivered  up, 

or  secured,  91 
inspection   of,    in  bands   of   mort- 
gagee, 115 
deposit  of  mortgage  by,  123-125 
right  of  detainer  of,  124 
notice  as  to,  158 
possession  of,  protection  by,  160 
TORT.     See  Injunction  against. 
TRADE, 

trust  fund  used  in,  64 
secret  of,  injunction  against  use  of, 
216 


TRANSFER 

of  trust,  32,  53 

of  equitable  interest,  53 

of  interest  in  suit,  effect  of,  408-410 

of  stock,  restraining   order  as  to, 
358 

when  breach  of  trust,  38 

substantial,  for    specific    perform- 
ance, 90 

decree  for,  394,  395 

by  master  instead  of  party  in  con- 
tempt, 305 
TRANSITU, 

stoppage   in,  may  be  enforced  in 
equity,  127 
TRAVERSE, 

matter  of  right,  293 

of  inquisition,  292 

general,  in  answer,  343 

special,  in  answer,  344 

of  statement  in  bill  of  review,  418 
TRAVERSING  NOTE,  329 
TREASON.     See  Attainder. 
TRESPASS, 

action  of,  91,  209 

remedy  at  law  for,  209,  210 

as  to  mine  or  colliery,  injunction 
against,  247 
See  Destructive  Trespass. 
TRESPASSER, 

at  law,  86 
TRIAL.     See  New  Trial. 
TROVER, 

action  of,  91 
TRUSTEES, 

who  called,  26,  27 

duties  and  responsibilities  of,  55,  et 
seq. 

by  operation  of  law,  143 

by  construction  of  equity,  62,  81,  97, 
102,  115,  143 

claims  against,  69 

by  misrepresentation,  150 

retiring,  38,  39 

desirous  of  being  discharged,  61 

compelled  to  act,  61 

restrained,  61 

removed,  61 

another  appointed,  61 

incapacitated,  8K349 

refusing  to  convey,  37 

careless  or  negligent,  151 

abusing  trust,  352,  353 

defaulting    contribution    between, 
268 

acquiring  benefit,  59,  60,  61,  183 

being  a  solicitor,  61 

nomination  of,  by  court,  36,  37 

appointment  of,  by  court,  37,  38,  39 


830 


INDEX. 


TRVSTE'RS— continued. 

authorized  by  court,  act  by,  143 
conveyaace  by  substitution  to,  37, 81 
trusts  shall  not  fail  for  want  of,  36 
how  may  divest  themselves  of  trust, 

37,  38 
may  deal  with  cestui  que  trust,  60,184 
for  sale,  155 

or  purchase,  sale  or  pur- 
chase by,  60,  183,  184 
of  ward,  284 
of  stock,  moneys,  &c.,  39 
attainder  of,  50 

on  death  of  cestui  que  trust,  50 
death  of,  without  heirs,  50 
notice  to,  of  conveyance,  161 

of  transfer,  53 
person  in  nature  of,  352 
when  executor  is,  251,  252 

purchaser  is,  352 
property  unduly   changed  by,  142, 

143 
enjoined  from  committing  breach  of 

trust,  207 
inquiry  as  to  wilful  default  of,  221 
promise  by  legatee  to  stand,  248 
consent  of,  to  marriage,  186 
ejectment  by,  194 
parties  to  suit  as  to  breach  of  trust, 

319 
representing  cestui  que  trust  in  suit, 

316,  317 
suit  against,  parties  to,  318 
right  of,  as  to  costs,  61 
cost  of  in  suits  for  performance  of 
trusts,  390 

See  Conversion. 
TRUST, 

generally,  26-76 

acceptance  of,  how  evidenced,  37 
mortgage  of,  122 

deed  in  nature  of  mortgage,  122,  126 
to  pay  debts,  255 
notice  of,  effect  of,  152 
set-ofiF  in  case  of,  223 
estate  of  debtor,  operation  of  elegit 
on,  131 
made  assets,  254 
title  to,  how  perfected  in 

•equity,  160,  161 
disentailing  of,  50 
iu  an  infant,  285 
suits  for  performance  of   costs  of, 

390,  391 
concealment  of  ground  for  bill  of 

review,  419 
equity  under,  149 

operation,  under,  of  equitable  con- 
version, 135,  et  seq 


TRUST— continued. 

countermanded,  a  reconversion,  136, 
137 
See  Conversion ;  Declaration ;  Stat- 
ute of  Frauds. 
UNCERTAINTY, 

gift  void  on  ground  of,  69 
UNDERWRITERS, 

contribution  between,  269 
See  Average. 
UNIVERSITIES, 

privilege  of,  331 

privileges   of,   as   to   printing   and 
copyright,  214 
UNSOUND  MIND.     See  Pmows  o/. 
USURIOUS  CONTRACT, 

discovery  as  to,  3 
USE.     See  Separate  Use. 
USEFUL  OBJECTS, 

trusts  for,  65 
VALIDITY, 

of  patent,  213 

of  will  of  personal  estate,  248 
real  estate,  249 
VALUE, 

rent  below,  notice  of  fraud,  159 
See  Compensation. 
VALUABLE.     See  Consideration. 
VARIATION 

01    decree,   effect   of,  as    to   costs, 
400 
VENDEE, 

death  of,  effect  of,  140,  141 
VENDITIONI  EXPONAS, 

writ  of,  395 
VENDOR 

allowed  time,  89 

equitable  lien  of,  122,  126-129 

death  of,  effect  of,  140 

ejectment  by,  194 
VERDICT 

at  law,  300 

on  issue  directed,  376,  377 
VICAR, 

right  to  an  issue  on  modus,  377 

costs  of,  in  suits  to  establish  modus, 
390 
VIVA  VOCE 

examination  before  master,  382 
VISITOR, 

of  corporation,  &c.,  74,  75 

being  trustee,  75 
VOLUNTARY 

conveyance,  &c.,  153 

gift,  147 

equity  under,  149 

grant,  146 

promise,  79 
See  Bounty. 


INDEX. 


831 


WAIVER, 

parol,  84 

of  penaltj',  5 

of  right  to  call  for  title,  87 

of  forfeiture  in  suit  for  tithes,  235 

evidence  of,  87 
WARD 

of  court,  bill  to  make  an  infant,  281 

education  of,  282-284 

management  of  estate  of,  284-290 

guardian  taking  benefit  from,  184 
See  Infant. 
WARDSHIP, 

incidents  of.  281 
WARRANT 

of  master,  382,  383 

for  preparing  report,  383,  384 
WARRANTY, 

representation  by  way  of,  178,  179 
WASTE,  208,  209,  355,  356 
WELSH  MORTGAGE,  122,  125,  126 
WEST  INDIAN  MORTGAGE,  112 
WIDOW 

entitled  to  dower,  bound  to  elect,  94 

right  of,  as  to  revivor,  404,  405 
WIFE, 

duty  of  maintaining,  97 

chose   in  action  of,  assignment  of, 
142 

right  of  survivorship  of,  142 
See  Feme  Covert. 
WILFUL  DEFAULT, 

inquiry  as  to,  against  trustee,  mort- 
gagee or  agent,  221 
WILL, 

validity  of,  jurisdiction  as  to,  175, 
248 

jurisdiction  to  declare,  established, 
249 

trusts  created  by,  27,  249 

resulting  trusts  by,  32 

mistake  in,  172 

to  be  registered,  153 

proof  of  execution  of,  on  issue  di- 
rected, 249,  250 

fraud  used  in  obtaining,  175,  248 

execution  of  power  by,  100 

of  feme  covert  judicially  non-exist- 
ent, 93 

construction  of,  as  to  trusts,  41,  42 

bill  to  perform  trusts  of,  249 


WILL — continued. 

bill  to  administer  assets  under,  249 

suits  to  establish,  costs  of,  390 

void  under  late  Will  act,  93 

made  before  late  Will  act,  94 

act  as  to  copyholds,  98,  99 

residuary  devise,  265 
See  Elections. 
WITNESS, 

competent,  364 

evidence  of  one  only,  21 

attesting  to   will,   examination   of, 
249,  250,  373 

defendant  examined  as,  363-365 

plaintiff  incompetent  as,  365 

mode  of  examining,  369-371 

signature  of,  to  examination,  370 

objection  of.  to  interrogatory,  370 

evidence  to  discredit,  371 

See  Commission;  Eoidence. 
WOODS.     See  Timber. 
WORK, 

contract  to  do,  83 

done,  account  of,  224 
WRIT 

of  assistance,  393,  394 

of  attachment,  325,  393 

with  proclamations, 
325,  328,  393 

of  distringas,  357,  393 

of  dower,  234 

unde  nihil  habet,  234 

of  error,  300,  301 

of  execution,  393,  394 

of  injunction,  311 

de  lunatico  inquirendo,  292 

of  melius  inquirendum,  292 

of  ne  exeat  regno,  311,  349,360,361 

of  partition,  229,  230 

of  rebellion,  325,  328,  393 

of  sequestration,  325,  393 

of  subpoena,  308,  310,  311 

of  venditioni  exponas,  395 

delivery  of,  131 

Sec  Elegit ;  Fieri  Facias. 
WRITING, 

trust  by,  28,  143 

agreement    in,    under    Statute     of 
Frauds,  85,  86 

instrument  in,  extrinsic  evidence  as 
to,  103,  104 


THE   END. 


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